Opinion
G057881
10-05-2020
THE PEOPLE, Plaintiff and Respondent, v. DAVID STEVEN ORTEGA, Defendant and Appellant.
Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel, Tami Falkenstein Hennick and Collette Cavalier, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 16NF1172) OPINION Appeal from a judgment of the Superior Court of Orange County, Richard M. King, Judge. Affirmed. Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel, Tami Falkenstein Hennick and Collette Cavalier, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant David Ortega was convicted of special circumstance gang murder and attempted premeditated murder, with attendant gang and firearm enhancements. On appeal, he alleges insufficient evidence as to the special circumstance allegation, as well as evidentiary, instructional and sentencing error. He also contends the trial court failed to adequately investigate possible juror misconduct and may have denied him access to relevant discovery materials. Finding no basis to disturb the judgment, we affirm.
FACTS
On the evening of July 19, 2015, David Douglas and his friend John Anderson were talking in Douglas' driveway on Lullaby Lane in Anaheim when they noticed two men spray painting graffiti ("tagging") in the area. The men - appellant and Edgar Ramirez - belonged to a local street gang known as the Anaheim Devious Hoodlums (ADH). As they approached Douglas' driveway from the west, Anderson asked them what they were doing. The men walked right by without saying a word and began tagging the sidewalk by Douglas' next-door neighbor, Adilene Navarro.
Navarro happened to be in her driveway at the time. When she saw what appellant and Ramirez were doing, she told them to "knock it off." Anderson also approached them and repeated his earlier question. Again, however, the taggers did not respond; they just left, continuing on down the sidewalk as if nothing happened.
Anderson and Douglas followed them from a distance. After a minute or so, Douglas turned back to his house to get his SUV, while Anderson continued to shadow the men. After seeing them turn right at the corner onto Poona Drive, Anderson followed suit. He then saw appellant duck into the bushes off to the right. Ramirez kept walking south on Poona toward Cerritos Avenue, where an ADH party was going on at the home of Chente Guerra.
Guerra's house was located only about 500 feet from where appellant and Ramirez split up.
As Anderson made his way down Poona Drive, appellant came out of the bushes and confronted him. Now, however, appellant was wearing a bandana over his face. Despite his slight build, he chest-bumped Anderson and told him to mind his own business. He also warned Anderson, "I own this neighborhood" and "You don't want none of this." Anderson did not feel threatened; he asked appellant where he lived and why he was out tagging. Although their discussion was spirited, Anderson did not feel they were yelling. After a minute of conversation, Anderson turned around and began walking back toward Lullaby Lane. He did not see where appellant went or what was transpiring behind him on Poona Drive.
As it turned out, several ADH members had left Guerra's party and were walking briskly up Poona to the scene. When they reached the corner of Poona and Lullaby, they took up a position with appellant behind a parked car in the area. Moments later, Douglas arrived on the scene in his SUV. He stopped on Lullaby, just short of Poona, to let Anderson inside the vehicle. After Anderson entered the front seat, appellant and two of his companions swarmed the SUV and went on the attack.
The police were unable to determine the identity of appellant's two companions. The prosecution theorized they were ADH members Tony Tapia and Andy Frenes.
Appellant was the first to reach the SUV. Now armed with a handgun, he reached inside Anderson's passenger window and fired multiple shots. Then a second man came up behind him and started shooting at the SUV as well. The third attacker went around to the other side of the SUV, but it is unclear whether he had a gun or fired any shots. Anderson was shot in the arm and shoulder and was nicked by a bullet in the back of the head. He survived the shooting, but Douglas suffered multiple gunshot wounds to the arm and neck and died at the scene. The bullets recovered from his body during his autopsy revealed he was shot with a revolver, which is the same type of gun Anderson saw appellant holding at his window. Two cartridges from a semiautomatic handgun were also found at the scene.
When the police arrived, they found fresh graffiti at multiple locations near the shooting scene. The graffiti referenced ADH and contained the names "T-Mite" and "Bounce." Investigators later learned that appellant's gang moniker was Termite, and Ramirez's was Bounce. They also discovered shoe prints near the graffiti that had many of the same characteristics as the shoes appellant and Ramirez were wearing at the time of their arrest. In addition, investigators obtained surveillance video from homes in the area that had captured parts of the shooting as well as video of two men walking in the area about 20 minutes earlier. One of the men in the videos had a dark mark on his left arm that was consistent with a tattoo appellant has on his left arm.
The day after the shooting, investigators contacted ADH member Robert Vasquez. Upon examining Vasquez's phone, they found a listing for "Termite" in his contacts information, with a phone number of 499-6914. Although investigators never found appellant's phone, they were able to connect him to that number through his Facebook page and various messages that were found on the phone of his girlfriend Shannon Williams. A forensic examination of Williams' phone revealed she had conducted several Google searches about the shooting in the hours after it occurred, and she had downloaded a photo of Douglas from an online article about the shooting.
At the time of the shooting, appellant and Williams were living together in Chino. Two days after Douglas was murdered, the police searched their home and found a multitude of items that referenced ADH and/or Termite, including a cinder block, a letter and other written materials.
Appellant and Ramirez were jointly tried for murder, attempted murder and an assortment of gun and gang allegations. In addition to the facts outlined above, there was testimony from a gang expert about the general characteristics of Hispanic criminal street gangs such as ADH. Based on his review of police records and court documents, he believed the gang's primary activities were auto theft, drug sales and unlawful firearms possession. He also opined appellant and Ramirez were ADH members at the time of the shooting, and the shooting benefited ADH by enhancing its reputation for violence.
At trial, the prosecution also presented evidence appellant was involved in a tagging incident that occurred near an Anaheim liquor store on June 30, 2015, roughly three weeks before the shooting. On that day, the store's owner found fresh graffiti in the alley behind his store that referred to ADH and "T-Mite." Phone records placed appellant in the area of the liquor store from roughly 6:00 p.m. the previous evening until about 2:00 a.m. on the 30th.
The sole witnesses for the defense were Ralph Norwood and Zaeth Villasenor. Norwood testified to appellant's employment history, and Villasenor testified she heard arguing outside her home on Lullaby Lane before the shooting.
The prosecution's theory of the case was that after appellant and Ramirez split up on Poona, Ramirez went to Guerra's party and recruited several ADH members to help appellant take care of Anderson and Douglas. While admitting Ramirez was not among the people who carried out the shooting, the prosecutor tried him as an aider and abettor.
With respect to appellant, the prosecutor tendered two theories of liability. His primary theory was that appellant was guilty as a direct perpetrator for shooting Douglas and Anderson with premeditated intent to kill. Alternatively, he argued that even if appellant did not fire his gun, he was still liable for aiding and abetting his fellow gang members in carrying out the shooting. Appellant's attorney argued the prosecution had the wrong guy and appellant was not guilty of anything because he was not involved in the shooting or any of the events leading up to it. In so arguing, defense counsel highlighted the fact Anderson was unable to identify any of the gunmen, and there was no DNA or fingerprint evidence tying appellant to the shooting.
In the end, the jury was unable to reach a verdict as to Ramirez, and the court declared a mistrial on his case. As to appellant, the jury convicted him of first degree premeditated murder and attempted premeditated murder. (Pen. Code, §§ 187, subd. (a), 189, subd. (a), 664, subd. (a).) It also found true a special circumstance allegation the murder was committed to further the activities of his gang. (§ 190.2, subd. (a)(22).) As to each of the counts, the jury additionally found appellant personally used a firearm (§ 12022.53, subd. (b)), vicariously discharged a firearm causing death or great bodily injury (§ 12022.53, subds. (d), (e)), and acted for the benefit of his gang (§ 186.22, subd. (b)).
Unless noted otherwise, all further statutory references are to the Penal Code.
Originally, appellant was also charged with personally discharging a firearm causing death or great bodily injury under section 12022.53, subdivision (d). However, the prosecution dismissed this allegation before trial, thinking it was duplicative of the other firearm allegations. Thus, while the jury found appellant personally used a firearm during the murder, which includes the act of displaying a gun in a menacing fashion, it was not required to determine whether he actually fired the shots that killed Douglas and wounded Anderson.
The trial court sentenced appellant to life in prison without parole, plus multiple indeterminate life terms, for his actions. This appeal followed.
DISCUSSION
Sufficiency of the Evidence
Appellant argues there is insufficient evidence to support the jury's true finding on the gang-murder special circumstance allegation. He does not dispute there is sufficient evidence tying him to the murder; rather, he contends there is insufficient evidence he was aware of ADH's criminal activities at the time it occurred. We cannot agree.
In assessing the sufficiency of the evidence to support a special circumstance allegation, we use the same standard of review applicable to a criminal conviction. (People v. Hillhouse (2002) 27 Cal.4th 469, 496.) That is, we review the record in the light most favorable to the judgment below to determine whether it discloses substantial evidence from which a reasonable trier of fact could find the allegation true beyond a reasonable doubt. (Ibid.)
The gang-murder special circumstance requires proof of three elements: 1) The defendant intentionally killed the victim to further the activities of a criminal street gang; 2) at the time of the killing, the defendant was an active participant in the gang; and 3) the defendant knew that members of the gang engage in or have engaged in a pattern of criminal activity. (§ 190.2, subd. (a)(22); People v. Carr (2010) 190 Cal.App.4th 475, 487-488; CALCRIM No. 736.)
Only the third requirement is at issue in this case. Appellant contends the prosecution presented insufficient evidence regarding his rank or level of involvement in ADH from which the jury could reasonably infer he was aware of the gang's criminal activities. However, the evidence established appellant was deeply entrenched in the gang culture and well positioned to know of ADH's crimes.
At the time of the shooting, appellant was 32 years old. He had an ADH tattoo emblazoned across his back and a cinder block on his front porch that reflected his allegiance to the gang. Inside his home, the police found a letter written by ADH member Andy Frenes to appellant in 2013, two years before the shooting in this case. Frenes, who was in prison for attempted murder, referred to appellant as Termite in the letter and signed it, "Your homeboy Andy WS [Westside] ADH."
The cinder block had "DHX3" written on it. The gang expert explained DH stands for Devious Hoodlums, and X3 is a reference to the Mexican Mafia.
Frenes was not appellant's only friend in ADH. Through the presentation of phone, computer and photographic evidence, the prosecution established that for years prior to the shooting, appellant was well acquainted with many other members of the gang. That included Robert Vasquez, who had appellant listed by his gang moniker Termite in his phone contacts, and who, like Frenes, had several criminal convictions to his name (for selling drugs and possessing loaded, unregistered firearms).
"T-Mite," a variation of the name Termite, was also found on ADH graffiti located near the shooting scene and at an Anaheim liquor store three weeks earlier, indicating appellant was personally involved in the gang's criminal activity before the instant case arose. There was nothing to suggest he was a newcomer to the gang or unfamiliar with its members' penchant for illegal behavior.
In fact, the gang expert testified most gang members join their gang when they are in their teens. And, over time, as they "put in work" for the gang, meaning commit crimes that benefit the gang, they earn trust from their fellow gang members. With that trust comes increased responsibility and access to information about the gang. So, if a person was in a gang for many years, they would, according to the gang expert, be expected to know the general business of the gang, as well as its day-to-day operations.
Viewing all of this evidence in favor of the judgment below, as we are required to do, we conclude it constitutes substantial evidence from which the jury could reasonably infer appellant was a long-time member of ADH and was fully aware of its criminal activities when the shooting in this case occurred. We therefore reject appellant's challenge to the sufficiency of the evidence to support the gang-murder special circumstance allegation.
Evidentiary Issues
1. Contacts Listing for "Termite" on Robert Vasquez's Phone
As noted above, when the police examined ADH member Robert Vasquez's phone the day after the shooting, they discovered it contained a listing for "Termite" under his contacts information. The Termite listing had a corresponding phone number of 499-6914, which the police were able to trace to appellant through other evidence. At trial, the prosecution wanted to introduce the contacts listing to prove appellant was Termite, the person who spray painted ADH graffiti and the name T-Mite around Lullaby Lane prior to the shooting. Appellant objected on the basis the listing constituted inadmissible hearsay, but the trial court overruled the objection. The court determined the listing was admissible for the "non-hearsay purpose" of supporting the gang expert's opinions about ADH and Vasquez's role in the gang. In other words, the court believed the listing was admissible because it was being offered as basis evidence for the expert's opinions, not for its substantive truth.
The trial court's ruling was incorrect. In People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez), our Supreme Court rejected the idea that case-specific hearsay can be used to support an expert's opinions without implicating the hearsay rule. The court held, "If an expert testifies to case-specific out-of-court statements to explain the bases for his opinion, those statements are necessarily considered by the jury for their truth, thus rendering them hearsay. Like any other hearsay evidence, it must be properly admitted through an applicable hearsay exception." (Id. at p. 684.)
The Sanchez court also ruled the introduction of such statements violate the Sixth Amendment's Confrontation Clause if they are testimonial in nature, i.e., made for the purpose of proving some fact at trial. (Sanchez, supra, 63 Cal.4th at p. 686.) However, as appellant concedes, the contact information listed in Vasquez's phone was not intended for this purpose. Therefore, its admission did not implicate the Sixth Amendment.
The Attorney General does not proffer any possible exception in this case. Instead, he clings to the notion that the Termite listing on Vasquez's phone was admissible for a non-hearsay purpose in that it served as basis evidence for the gang expert's opinion that appellant was an ADH member. In so arguing, the Attorney General fails to acknowledge Sanchez's holding, which is directly contrary to his argument.
Alternatively, respondent avers the Termite listing was admitted simply to explain how the investigation unfolded once the police discovered it on Vasquez's phone. But that is not how the prosecutor used the listing at trial. Rather, he used it to establish appellant was Termite. Because the validity of this fact depended on the truth of the listing itself - that Termite's phone number was actually 499-6914 - we cannot subscribe to respondent's theory that the listing was admitted for a proper non-hearsay purpose.
Still, the admission of the listing evidence was not prejudicial. It is not reasonably probable appellant would have obtained a more favorable result had it been excluded from his trial. (See People v. Jeffrey G. (2017) 13 Cal.App.5th 501, 510 [The reasonable probability standard of harmless error established in People v. Watson (1956) 46 Cal.2d 818 applies in cases involving state evidentiary error under Sanchez].) We reach this conclusion based on a number of considerations.
First, besides the contacts listing on Vasquez's phone, there was other evidence linking appellant to the name Termite. In the letter ADH member Frenes sent to appellant from prison in 2013, he alluded to appellant as Termite, and the name Termite was found on several other writings in appellant's house after the shooting. Appellant was also connected to the tagging incident that occurred near the liquor store three weeks earlier in which the name "T-Mite" was found amongst ADH graffiti. Taken together, this evidence rendered the phone listing evidence cumulative in terms of proving appellant was Termite.
Moreover, aside from the strong evidence linking appellant to the moniker Termite, there was strong evidence linking him to the shooting itself. Near the scene of the shooting, by the fresh graffiti located in the area, the police discovered a shoe print that had a high degree of association with the left shoe appellant was wearing at the time of his arrest. The two forensic experts who came to this conclusion were unable to say with absolute certainty that the discovered print came from appellant's shoe. But they testified appellant's shoe was the same brand, design, and size as the discovered print. In addition, appellant's shoe and the discovered print had the same degree of wear and shared a randomly acquired characteristic that was attributable to a distinctive manufacturing defect. This led one of the experts to opine that "very few, if any, other shoes would have" left the print.
Appellant was also linked to the shooting by virtue of the home surveillance videos that were admitted into evidence by the prosecution. The videos showed two men in the area near Lullaby and Poona before and during the shooting. One of the men had a dark marking on his left arm that was generally consistent with a tattoo appellant has on his left arm.
The fact appellant's girlfriend was "Googling" information about the shooting in the hours after it occurred also suggests appellant was involved in the killing. As we explain more fully below, it doesn't prove that of course, but it adds to the other circumstantial evidence linking appellant to the shooting.
Given the combined strength of this evidence, we are convinced the admission of the contacts listing for Termite on Vasquez's phone was harmless error. Because it is not reasonably probable appellant would have received a more favorable result had the listing been excluded, its admission into evidence is not cause for reversal.
2. Search History on Shannon Williams' Phone
As we have noted, Williams was appellant's live-in girlfriend when this case arose. Two days after the shooting, the police seized her phone and discovered she had been searching for information about the shooting in the hours after it occurred. She had also downloaded a picture of victim Douglas from an online news article about the shooting. Appellant contends this evidence should have been excluded as irrelevant, but we do not believe the trial court abused its discretion by allowing the jury to hear it.
Trial courts have broad leeway in determining the relevancy of evidence. (People v. Kelly (1992) 1 Cal.4th 495, 523.) "Relevant evidence includes all 'evidence . . . having any tendency in reason to prove . . . any disputed fact that is of consequence to the determination of the action.' [Citation.]" (People v. Riggs (2008) 44 Cal.4th 248, 289-290.) On appeal, rulings in this area are reviewed under the deferential abuse-of-discretion standard; we will not disturb a trial court's relevancy ruling unless the court acted in an arbitrary, capricious or patently absurd fashion that resulted in a miscarriage of justice. (People v. Merriman (2014) 60 Cal.4th 1, 74.)
Appellant contends the information acquired from Williams' phone about the shooting was irrelevant because there was no direct evidence as to how she learned about the shooting. Even though Williams' phone records showed she talked to ADH member Tony Tapia in the wake of the shooting, appellant insists Williams' subsequent Google searches were meaningless absent evidence that Tapia told her that he (appellant) was involved in the shooting. However, it doesn't matter whether Tapia and Williams discussed that issue on the phone. The very fact Williams was searching for information about Douglas' death tended to show she had reason to believe appellant and/or his gang was involved in the shooting.
To be sure, the value of this evidence was not overwhelming in terms of proving appellant's guilt, but given Williams' close relationship to appellant, her actions suggested she was looking for information to help her boyfriend. If, mere hours after it takes place, your girlfriend is "Googling" a murder that was committed shortly after you and a victim argued, it's relevant. It's not of great weight, but it's relevant. Accordingly, the trial court did not abuse its discretion in admitting evidence of Williams' Google searches or the fact she downloaded a photo of Douglas after the shooting.
3. Prior Tagging Incident
Appellant also asserts the trial court erred in admitting evidence concerning the tagging incident that occurred at the Anaheim liquor store three weeks before the shooting. He contends the evidence was irrelevant and admitted in violation of his right to due process and a fair trial, but we do not see it that way.
The trial court instructed the jurors they could consider the prior tagging evidence with respect to the issues of intent, identity, motive and knowledge. The court also told the jurors the evidence was insufficient by itself to prove appellant's guilt, and they could not use it to conclude appellant had a bad character or was predisposed to commit the charged offenses. (CALCRIM No. 375.)
As to the issue of intent, appellant rightly notes the shooters' intent to kill was made obvious by the method of the killing. However, in addition to having to prove the intent to kill, the prosecution had to establish appellant intended to promote, further or assist criminal gang conduct and that he knew of his gang's criminal activities, in order to prove the gang allegations. (§§ 186.22, subd. (b)(1), 190.2, subd. (a)(22).) The evidence of appellant's involvement in the prior tagging incident helped prove these additional requirements in that it demonstrated appellant's commitment to ADH and his personal involvement in the gang's criminal acts.
In his reply brief, appellant notes the trial court limited the jury's consideration of the prior tagging incident to the "charged offenses." He takes this to mean the gang allegations have no place in our analysis of the incident. However, the charged offenses included the gang allegations and can be fairly described as special circumstances gang murder and attempted gang murder. Therefore, we see no reason to ignore the requirements of the gang allegations in assessing the relevancy of the prior tagging evidence.
The prior tagging evidence also shed light on a possible motive for appellant's actions in the present case, i.e., to show he was down for his gang and would do anything to promote its reputation for violence. And, the evidence connected appellant to the shooting for purposes of proving the issue of identification. The fact appellant was using the name T-Mite on ADH graffiti three weeks prior to the shooting and similar graffiti was found in close proximity to the shooting scene suggests appellant had a hand in the shooting. Again, appellant's argument mistakes evidence that was not of great weight for evidence that was irrelevant.
Even assuming it was error to admit evidence of the prior tagging incident, the error was not of such nature as to violate appellant's constitutional rights to due process and a fair trial. As we say, this evidence added little. Appellant was firmly implicated in the tagging incident by virtue of his phone records and his gang moniker, the incident was very close in time to the shooting, and it was far less inflammatory than the shooting itself. In addition, the trial court's instructions precluded the jury from considering the tagging incident as a reflection of appellant's character or his propensity for criminal conduct. For all these reasons, the evidence of the incident was harmless if erroneous. (See People v. Ewoldt (1994) 7 Cal.4th 380, 408 [ruling that evidence of the defendant's prior uncharged conduct was unlikely to cause actual prejudice because it was not confusing, unduly remote or incendiary in nature].)
Instructional Issues
1. Motive Instruction
Per CALCRIM No. 370, the trial court instructed the jury, "The People are not required to prove that the defendant had a motive to commit any of the crimes charged." Appellant claims this instruction reduced the prosecution's burden of proof on the special circumstance allegation, which, as noted above, required proof appellant murdered Douglas to further the activities of a criminal street gang. (§ 190.2, subd. (a)(22); CALCRIM No. 736.) We do not believe the motive instruction had this unintended effect.
The underlying assumption of appellant's argument is that motive is an essential element of the gang-murder special circumstance. If that's the case, then telling the jury the prosecution did not have to prove motive would be problematic because it would effectively remove a necessary element from the jury's consideration. However, the gang-murder special circumstance does not require proof of any particular motive. (People v. Fuentes (2009) 171 Cal.App.4th 1133, 1139-1140.) So long as the defendant murdered the victim with the intent to further the activities of his gang, it doesn't matter whether he was motivated by the desire to get respect, to get revenge or some other reason. Since motive is not an element of the gang-murder special circumstance allegation, CALCRIM No. 370 did not lessen the prosecution's burden of proving that allegation. (Ibid. [motive instruction did not undermine the instructions on the gang charges]; People v. Garcia (2016) 244 Cal.App.4th 1349, 1363-1364 [same]; compare People v. Maurer (1995) 32 Cal.App.4th 1121, 1126-1127 [where the charged crime (a sex offense) specifically required proof of motive, it was error to give motive instruction].)
2. Aiding and Abetting Instructions
Appellant contends the trial court prejudicially erred in failing to include him in the instructions on aiding and abetting. Although the court's instructions on aiding and abetting were not perfect, we do not believe they warrant reversal.
Per CALCRIM No. 400, the trial court told the jury, "A person may be guilty of a crime in two ways: One, he or she may have directly committed the crime. I will call that person the perpetrator. Two, he or she may have aided and abetted a perpetrator who directly committed the crime. A person is guilty of a crime whether he or she committed [it] personally or aided and abetted the perpetrator."
Per CALCRIM No. 401, the court then told the jury, "To prove the Defendant Edgar Ramirez is guilty of a crime based on aiding and abetting that crime, the People must prove that: One, the perpetrator committed the crime. Two, the defendant knew that the perpetrator intended to commit the crime. Three, before or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime. And four, the defendant's words or conduct did, in fact, aid and abet the perpetrator's commission of the crime."
Because CALCRIM No. 401 only referered to codefendant Ramirez, appellant fears the jury may not have known the requirements of that instruction also applied to him. However, at the outset of its instructions, the trial judge told the jury, "Unless I tell you otherwise, all instructions apply to each defendant." That's pretty clear. Additionally, it was clear from the prosecutor's closing argument he was relying on aiding and abetting as an alternative theory of guilt as to appellant. Under these circumstances, it is not reasonably likely the jury believed CALCRIM No. 401 applied only to Ramirez. While the trial court would have been better off to leave Ramirez's name out of the instruction altogether, we do not believe the wording of CALCRIM No. 401 undermined the fairness of appellant's trial.
In reaching this conclusion, we have also considered the prosecution's theory of the case as to appellant and the nature of appellant's defense. Primarily, the prosecutor argued appellant was guilty as a direct perpetrator, a theory that was amply supported by the evidence at trial. In comparison, only a very small portion of the prosecutor's argument was devoted to this backup theory that appellant was guilty under aiding and abetting principles, and the defense was not directed at contradicting it.
Instead, defense counsel insisted appellant was not involved in the shooting in any way, either as a perpetrator or an aider and abettor. He did not challenge the prosecutor's assertion that the people who attacked Douglas and Anderson intended to kill them and were working in cahoots with one another. Because the only issue as to appellant was identification, it is immaterial that CALCRIM No. 401 referred to Ramirez, as opposed to defendants generally. This minor flaw was immaterial under any standard of harmless error. (See generally People v. Flood (1998) 18 Cal.4th 470, 504-507 [the trial court's failure to instruct on a necessary element may be considered harmless beyond a reasonable doubt when evidence of the element is overwhelming or uncontradicted or the element is effectively conceded by the defense].)
3. Failure to Instruct on Voluntary Manslaughter
Appellant asserts there was sufficient evidence of heat of passion to require the trial court to instruct the jury sua sponte on the lesser included crimes of voluntary manslaughter and attempted voluntary manslaughter. We do not believe the evidence of heat of passion rose to that level, and even if it did, the failure to instruct on those lesser offenses could not have been prejudicial to appellant under the circumstances presented in this case.
In formulating instructions for the jury, the trial court must be cognizant of possible lesser offenses that are included in the charged crimes, even when instructions on lesser offenses are not requested by the parties or are inconsistent with the defendant's theory of the case. (People v. Breverman (1998) 19 Cal.4th 142, 154-157.) However, the duty to instruct on lesser included offenses is not triggered in every case. (People v. Cruz (2008) 44 Cal.4th 636, 664.) Rather, it only arises when there is substantial evidence the defendant has committed the lesser, but not the greater offense. (People v. Shockley (2013) 58 Cal.4th 400, 403; People v. Flannel (1979) 25 Cal.3d 668, 684-684 [instructions on lesser included offenses are not required when the evidence to support them is minimal and insubstantial].)
Heat of passion "is a state of mind caused by legally sufficient provocation that causes a person to act, not out of rational thought but out of unconsidered reaction to the provocation. While some measure of thought is required to form an intent to kill or conscious disregard for human life, a person who acts without reflection in response to adequate provocation does not act with malice." (People v. Beltran (2013) 56 Cal.4th 935, 942.) "If the provocation would cause a reasonable person to react with deadly passion, the defendant is deemed to have acted without malice so as to . . . reduce the crime to voluntary manslaughter. [Citation.]" (People v. Hernandez (2010) 183 Cal.App.4th 1327, 1332; see also People v. Williams (1988) 199 Cal.App.3d 469, 475 [same principles apply to attempted voluntary manslaughter].)
Appellant argues instructions on heat of passion were proper in light of the confrontation that occurred between Anderson and him on Poona Drive before the shooting. But appellant is the one who came out of the bushes and confronted Anderson. He brazenly puffed out his chest - making contact with Anderson's body - and warned Anderson to go away because he "owned" the neighborhood. For his part, Anderson did not escalate the situation. While admitting he asked appellant where he lived and why he was tagging up the neighborhood, Anderson testified he never laid a finger on appellant, yelled at him or threatened him in any way. Those actions of a neighborhood resident - even one viewed as nettlesome - would not cause a reasonable person to act with deadly passion.
In arguing otherwise, appellant relies on the testimony of Zaeth Villasenor, who lived on Lullaby Lane, close to where the shooting took place. Villasenor testified she heard shouting, arguing and swearing coming from the street before the shooting. But she was unable to provide any details as to who was saying what. And, it was unclear from her testimony whether she was describing the encounter between appellant and Anderson that occurred on Poona, or the subsequent commotion that occurred on Lullaby when the shooting broke out.
In any event, any error in failing to instruct on voluntary manslaughter and attempted voluntary manslaughter was harmless beyond a reasonable doubt. We know this because even though the trial court failed to instruct on those offenses, it told the jurors they could convict appellant of second degree murder instead of first degree murder if they felt he was provoked. (See CALCRIM No. 522, as given ["Provocation may reduce a murder from first to second degree."].) In finding appellant guilty of first degree murder, the jury rejected the provocation notion and determined he acted with a premeditated mindset. As explained in People v. Wharton (1991) 53 Cal.3d 522 (Wharton), "This state of mind, involving planning and deliberate action, is manifestly inconsistent with having acted under heat of passion[.]" (Id. at p. 572.) Therefore, the failure to instruct the jury on that theory could not have caused appellant any prejudice. (Ibid.; People v. Carasi (2008) 44 Cal.4th 1263, 1306; People v. Peau (2015) 236 Cal.App.4th 823, 831; People v. Speight (2014) 227 Cal.App.4th 1229, 2145-1246.)
In arguing otherwise, appellant relies on People v. Berry (1976) 18 Cal.3d 509, which ruled the jury's premeditation finding did not render harmless instructions on heat of passion that were legally flawed. (Id. at p. 518.) But in assessing prejudice in Berry the Supreme Court focused on the inadequacy of the given instructions, not on the question of whether premeditation is legally and logically inconsistent with heat of passion. (People v. Peau, supra, 236 Cal.App.4th at pp. 831-832.) We know from the Supreme Court's more recent decision in Wharton that the answer to that question is yes. --------
Cumulative Error
Appellant argues the cumulative effect of the trial court's evidentiary and instructional errors deprived him of a fair trial. However, whether considered individually or in combination with one another, we do not believe the two errors that occurred at trial - the erroneous admission of Vasquez's phone information and the flawed instruction on aiding and abetting - had that effect. As we have explained, those errors were relatively minor considering the parties' theories of the case and the strong evidence of appellant's guilt. We therefore reject appellant's cumulative error argument as unmeritorious.
Alleged Juror Misconduct
Appellant also maintains the trial judge failed to properly investigate whether one of the jurors may have slept through parts of the trial. The record shows otherwise.
About 30 minutes into its closing instructions, the judge noticed Juror No. 253 was bobbing his head and nodding off, so he called a recess and spoke to the attorneys in chambers. The prosecutor wanted the juror removed, but appellant's attorney and the attorney for codefendant Ramirez thought it was premature to do that. Instead, they wanted the judge to question Juror No. 253 to find out whether, despite his apparent drowsiness, he was actually listening to the court's closing instructions, before making any decision about whether to remove him.
The judge said he was in favor of questioning Juror No. 253. At that point, the prosecutor said there were times during the presentation of evidence that he noticed Juror No. 253 appeared to be sleeping. The prosecutor said that if the judge was going to question Juror No. 253 about whether he was listening during the closing instructions, it should also ask him whether he was listening during the rest of the trial. Both defense attorneys opposed this request. They wanted the judge to limit the scope of his questioning to the closing instructions, and that is what he did. In the presence of counsel, he called Juror No. 253 into chambers and questioned him as follows:
"THE COURT: I have been reading the instructions . . . for a good half an hour to 35 minutes, and there were several occasions that I noticed that you were nodding off. Am I correct?
"JUROR NO. 253: That's true.
"THE COURT: So I need to know, when you were nodding off, I'm drawing the inference that you didn't listen.
"JUROR NO. 253: I'm not asleep, but I [had] a hard time keeping my eyes open during that particular time.
"THE COURT: I want to ask you, did you hear the instructions that the Court read?
"JUROR NO. 253: Yes. Yes. I'm sorry. Yes."
With that, the judge had Juror No. 253 step back into the courtroom and told the attorneys he was not going to remove him from the jury. The judge then asked each attorney if they had anything further to add or say, and they all said no.
Even though his trial attorney acquiesced to the trial court's handling of the issue, appellant insists the trial judge should have expanded his inquiry of Juror No. 253 to find out whether he was listening during the evidentiary phase of the trial, not just the closing instructions. The problem is, appellant's attorney specifically asked the court to limit the scope of its questioning of Juror No. 253 to the closing instructions. By not requesting a different course of action, appellant forfeited his right to challenge the manner in which the court investigated the issue of possible misconduct. (People v. Pettie (2017) 16 Cal.App.5th 23, 79-80.)
Even if the issue had not been forfeited, it does not appear the trial judge abused his discretion in failing to question Juror No. 253 more broadly. (See generally People v. Fuiava (2012) 53 Cal.4th 622, 702 [decisions pertaining to the manner in which an investigation into alleged juror misconduct is undertaken, like the court's ultimate decision to retain or discharge a juror, rest within the sound discretion of the court].) Indeed, he handled it well. When questioned in chambers, Juror No. 253 assured the judge that although he appeared to be nodding off during the court's instructions, he was actually not asleep. Instead, he was simply having trouble keeping his eyes open, and he did in fact hear what the court was saying. Given these responses, the judge could reasonably conclude Juror No. 253 fulfilled his duty to listen to all of the court proceedings. He was there, he saw and heard the juror, and chose to believe him. There is no reason to disturb the judge's conclusion in that regard.
Sentencing Issue
As to the murder count, the trial court sentenced appellant to life imprisonment without parole due to the jury's finding on the special circumstance allegation that he killed Douglas to further the criminal activities of his gang. (§ 190.2, subd. (a)(22).) The trial court then imposed an additional sentence of 25 years to life pursuant to section 12022.53, subdivisions (d) and (e), based on the jury's finding appellant vicariously discharged a firearm causing death. Like the special circumstance allegation, that firearm enhancement required proof appellant acted for the benefit of his gang. (§§ 12022.53, subds. (d), (e)(1)(A), 186.22, subd. (b).) Given that the special circumstance and the firearm enhancement were both gang-related, appellant contends the trial court should have stayed the enhancement under section 654. We disagree.
Section 654 prohibits multiple punishment for crimes or enhancements that were carried out pursuant to a single purpose or objective. (People v. Ahmed (2011) 53 Cal.4th 156.) However, the statute does not apply to the firearm enhancements set forth in section 12022.53 because, by its terms, that section applies "[n]otwithstanding any other provision of law[.]" (§ 12022.53, subds. (d), (e).) Because the application of section 12022.53 is "unfettered by section 654" (People v. Palacios (2007) 41 Cal.4th 720, 728), appellant's reliance on that section is misplaced, and we uphold his sentence. (Ibid.; People v. Hutchins (2001) 90 Cal.App.4th 1308, 1314.)
Pitchess Claim
Lastly, appellant asks that we independently review the materials the trial court examined in connection with his discovery motion under Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess). We decline the invitation.
In Pitchess, our Supreme Court held a criminal defendant has a right to discovery of the personnel records of peace officers to ensure "a fair trial and an intelligent defense in light of all relevant and reasonably accessible information." (Pitchess, supra, 11 Cal.3d at p. 535.) However, the right is not unlimited; only those records material to the pending litigation are subject to release. (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1019; §§ 832.7, 832.8; Evid. Code, §§ 1043-1045.)
In response to appellant's Pitchess motion, the trial court reviewed the personnel files of three Orange County Sheriff's Deputies who were involved in the investigation of the shooting. Those files included the internal affairs records - complaints, investigative findings and disciplinary actions - for each of the deputies. Ultimately, the court ordered the disclosure of some, but not all, of the information in the deputies' internal affair records. The order was made during the course of an in-camera hearing at which the court made a record of the information it had reviewed and explained the basis for its decision.
Appellant requests that we independently review the deputies' personnel files to ensure no relevant materials were omitted from the trial court's disclosure order. Respondent does not oppose the request, and we agree independent review would be the most effective way to assess the propriety of the court's order. (See People v. Nguyen (2017) 12 Cal.App.5th 44, 49-51 (unanimous conc. opn. of Bedsworth, Acting P.J.).) However, under California law, "[t]he sealed transcript that is before us, in which the court 'state[d] for the record what documents it examined,' is adequate for purposes of conducting a meaningful appellate review." (People v. Myles (2012) 53 Cal.4th 1181, 1209, quoting People v. Mooc (2001) 26 Cal.4th 1216, 1229 (Mooc).) Therefore, we have no basis for examining the documents ourselves. (Ibid.)
Having reviewed the sealed transcript of the hearing on appellant's discovery motion, we can only say it appears the trial court fulfilled its duties under Pitchess by making a record of the documents it examined and explaining the basis for its decision. (See Mooc, supra, 26 Cal.4th at p. 1229 [in ruling on Pitchess motion, the trial court should make a record of the documents it examined by describing them on the record]; People v. Bipialaka (2019) 34 Cal.App.5th 455, 462 [same].) That gives us no reason to disturb the court's disclosure order.
DISPOSITION
The judgment is affirmed.
BEDSWORTH, ACTING P. J. WE CONCUR: ARONSON, J. THOMPSON, J.