Opinion
E067985
09-30-2019
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL J. SINGH et al., Defendants and Appellants.
Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant Michael J. Singh. Doris M. LeRoy, under appointment by the Court of Appeal, for Defendant and Appellant Jamaal Duncan. William G. Holzer, under appointment by the Court of Appeal, for Defendant and Appellant Terryl Morris. Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant and Appellant Anthony A. Tolbert. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Randall Eihorn, Stacy Tyler, Paige B. Hazard and Steven T. Oetting, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FSB1402703) OPINION APPEAL from the Superior Court of San Bernardino County. Steve Malone, Judge. Affirmed in part, reversed in part, and remanded for resentencing. Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant Michael J. Singh. Doris M. LeRoy, under appointment by the Court of Appeal, for Defendant and Appellant Jamaal Duncan. William G. Holzer, under appointment by the Court of Appeal, for Defendant and Appellant Terryl Morris. Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant and Appellant Anthony A. Tolbert. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Randall Eihorn, Stacy Tyler, Paige B. Hazard and Steven T. Oetting, Deputy Attorneys General, for Plaintiff and Respondent.
Defendants and appellants Michael Singh, Jamaal Duncan, Terryl Morris and Anthony A. Tolbert, West Side Project Crips (Project Crips) gang members, were all involved to different degrees in the shooting and killing of Keven Decatur, who was in a vehicle with two other occupants, Emery Schexnayder and Dante Tyrone Holland. All defendants except for Morris were convicted of premediated, deliberate and willful first degree murder, two counts of attempted premediated, deliberate and willful murder, and participation in a criminal street gang. Morris was convicted of being an accessory after the fact.
Morris claims on appeal that (1) insufficient evidence was presented to support his conviction of accessory to murder within the meaning of Penal Code section 32 ; (2) he was denied his right to a fair trial by the trial court's refusal to remove Juror 6 during trial; and (3) his sentence was unauthorized because of imposition of a sentence on the section 667, subdivision (a), and 667.5, subdivision (b), priors, which were based on the same conviction.
All further statutory references are to the Penal Code unless otherwise indicated.
Tolbert claims that (1) his two convictions of attempted murder should be reversed for insufficient evidence because the jury was presented with a factually inadequate kill zone theory of attempted murder, and the record supports the jury relied on this inadequate theory in finding defendant guilty; (2) instructional error on the kill zone theory of attempted murder warrants reversal of his attempted murder convictions; (3) the matter must be remanded to allow the trial court to exercise its discretion to strike the firearm enhancement in accordance with newly enacted Senate Bill 620 (SB 620); and (4) the abstract of judgement should be corrected.
Duncan claims on appeal (1) the trial court erred by refusing to remove Juror 6; (2) the trial court erroneously admitted character evidence in the form of a video recording of him made prior to the shooting, which had no connection to the case; (3) the trial court abused its discretion in denying his motion for new trial and imposing sentence as it confused him with defendant Tolbert in assessing his role in the crimes; (4) the matter must be remanded for resentencing to allow the trial court to exercise its discretion to strike the firearm enhancement in accordance with SB 620; and (5) the abstract of judgment should be corrected.
Singh claims on appeal (1) insufficient evidence supports that he aided and abetted the murder of Decatur, the attempted murders of Schexnayder and Holland, and the gang crime; (2) his convictions of attempted willful, deliberate and premeditated murder must be reversed due to instructional error allowing the jury to convict him without finding he personally deliberated and premediated the attempted murders; (3) his convictions must be reversed based on the admission of statements by Duncan made during a group conversation as adoptive admissions; (4) reversal of his two convictions of attempted murder is warranted for insufficient evidence because the jury was presented with a factually inadequate kill zone theory of attempted murder and the record supports the jury relied on this inadequate theory in finding defendant guilty; (5) instructional error on the kill zone theory warrants reversal on the attempted murder convictions; (6) the trial court erred by instructing the jury with CALCRIM No. 372, the flight instruction, because his defense was identity; (7) he joins defendants Morris and Duncan in arguing that the trial court erred by refusing to remove Juror 6; (8) the matter must be remanded for resentencing to allow the trial court to exercise its discretion to strike the firearm enhancement in accordance with SB 620; (9) one of his section 667.5, subdivision (b), prior convictions must be stricken; (10) the stayed gang enhancements pursuant to section 186.22, subdivision (b)(1)(C), must be stricken rather than stayed; and (11) the abstract of judgment must be corrected.
In supplemental briefing, Morris and Singh argue they are entitled to remand for resentencing to allow the trial court the opportunity to exercise its discretion to strike their section 667, subdivision (a), enhancements under the newly enacted Senate Bill 1393 (SB 1393).
FACTUAL AND PROCEDURAL HISTORY
A. PROCEDURAL HISTORY
Defendants were all charged in a third amended information filed by the San Bernardino County District Attorney's Office in count 1 with first degree premediated, deliberate and willful murder of Decatur (§ 187, subd. (a)). In counts 2 and 3, they were charged with the attempted premediated, deliberate and willful murders of Schexnayder and Holland (§§ 664/187, subd. (a)). It was additionally alleged as to counts 1, 2 and 3 that the crimes were committed for the benefit of or on behalf of the Project Crips gang (§ 186.22, subd. (b)(1)(C)). It was alleged as to Duncan for counts 1, 2 and 3 that he personally and intentionally discharged a firearm causing great bodily injury or death (§ 12022.53, subds. (b), (c), (d), & (e)(1)). It was also alleged as to counts 1, 2, and 3 that a principal personally and intentionally discharged a firearm proximately causing great bodily injury and death (§ 12022.53, subds. (b), (c), (d) & (e)(1)).
All defendants were charged in count 4 with street terrorism (§ 186.22, subd. (a)). In count 5, Morris was charged with being an accessory after the fact to the crime of murder (§ 32). It was alleged as to count 5 that the crime was committed for the benefit of or on behalf of the Project Crips gang (§ 186.22, subd. (b)(1)(A)). Prior to the case going to the jury, the trial court dismissed counts 1 through 4 against Morris.
Defendants Tolbert, Singh and Duncan were found guilty of counts 1 through 4. The jury found all of the gun allegations; the willful, deliberate and premeditated allegations; and the gang enhancements true. Morris was found guilty in count 5 of being an accessory after the fact and that he committed the crime for the benefit of the gang.
Three defendants also had suffered prior convictions. Tolbert was charged with having served three prior prison terms (§ 667.5, subd. (b)); Singh was charged with suffering one prior serious felony conviction (§ 667, subd. (a)(1)), one prior serious and/or violent felony conviction (§§ 667, subd. (b)-(i), 1170.12, subd. (a)-(d)) and having served three prior prison terms (§ 667.5, subd. (b)); and Morris was charged with having suffered one prior serious felony conviction (§ 667, subd. (a)(1)), one prior serious and/or violent felony conviction (§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and served one prior prison term (§ 667.5, subd. (b)).
In a bifurcated court trial proceeding, Morris, Singh and Tolbert waived their right to a jury trial on the priors.
Morris admitted his prior convictions. Singh had a court trial and the priors were found true. The People dismissed the three section 667.5 subdivision (b), priors alleged against Tolbert.
Duncan, the shooter, was sentenced on count 1 to 25 years to life, plus 25 years to life on the gun enhancement, plus 10 years for the gang enhancement. On counts 2 and 3, Duncan was sentenced to 15 years to life, plus 20 years for the firearm enhancement on each count, which were to run consecutive to each other and count 1. The remaining enhancements were stayed. Duncan received a total sentence of 50 years plus 80 years to life.
Singh was sentenced on count 1 to the three-strikes sentence of 50 years to life, plus 25 years to life for the gun enhancement. On counts 2 and 3, he was sentenced to 30 years to life, plus 20 years for the gun enhancement for each count. Counts 2 and 3 were to run consecutive to count 1. The gang crime and remaining gang enhancements were stayed. Singh was also sentenced to five years for the section 667, subdivision (a), prior and three years for the three section 667.5, subdivision (b), priors. He received a total prison sentence of 48 years plus 135 years to life.
Tolbert was sentenced to 25 years to life, plus 25 years to life for the firearm enhancement on count 1. On counts 2 and 3, he was sentenced to 15 years to life, plus 20 years for the firearm enhancement on each count. The sentences and enhancements on counts 2 and 3 were ordered to run consecutive to each other and count 1. The gang crime and all the gang enhancements were stayed. He received a sentence of 40 years plus 80 years to life.
Morris was sentenced to 2 years 8 months on count 5, plus 2 years for the gang enhancement (§ 186.22, subd. (b)(1)(C)). In addition, a five-year sentence was imposed on the section 667, subdivision (a), prior plus one year for the section 667.5, subdivision (b), prior. Morris received a total sentence of 10 years 8 months.
A. FACTUAL HISTORY
1. PEOPLE'S CASE-IN-CHIEF
a. Defendants' Gang Affiliation
Riverside County Sheriff's Detective Bryce Holmes had spent several years in Riverside County assigned to gang units. He was specifically assigned to monitor Project Crips, West Side Rivas and the East Side Paramount. The West Side Rivas and East Side Paramount gangs were Hispanic gangs. He spent numerous hours investigating these gangs and individual members. He had filled out field interview and gang cards for members of these gangs.
Project Crips claimed the territory of West Riverside, including areas in Rubidoux, Belltown and Jurupa Valley. One of Project Crips rival gangs was the 1200 Blocc Crips (1200BC); 1200BC claimed East Riverside. There had been crimes of assault, shootings and fights involving members of Project Crips against 1200BC gang members in 2013 and 2014.
Detective Holmes had direct contact with Tolbert on the street in 2010. Tolbert had recently had interactions with other officers in 2014. Tolbert's gang moniker was Lil' Blank or Ant Loc. He had a tattoo of "PJC," which was a symbol for Project Crips. He had a tattoo of "Frontline" which symbolized that he was a soldier and carried out violent crimes for the gang. He had numerous other tattoos associated with the Project Crips gang. A field information card filled out on March 12, 2014, reflected that Tolbert affiliated with gang members, had gang tattoos and wore gang apparel.
Detective Holmes had previous contacts with Duncan. He had contact with Duncan in Project Crips territory in 2010. During one contact, Duncan was with three Project Crips gang members and was wearing a hat symbolizing Project Crips. He had been photographed making a Project Crips gang sign and photographed with Singh and other Project Crips gang members. He got a Project Crips tattoo in 2013. Duncan's gang moniker was Baby J-Dub.
Detective Holmes also had contacts with Singh in 2010 in the street. In 2012, Singh was seen with Duncan and another Project Crips gang member. Singh's gang moniker was Bug. He had been photographed making a gang sign. He had no gang tattoos.
Morris had several Project Crips tattoos. His gang moniker was Wicced. He had been photographed with Tolbert and other Project Crips gang members. Riverside County Sheriff's Deputy Jose Ayala had contact with Morris in August 2012 and filled out a gang card noting Morris had gang tattoos. In 2009, he self-admitted to being a Project Crips member.
Detective Holmes was familiar with the music video called "Do It For Da Riv." The victim, Decatur, who was known as B-Dott, was in the video along with known 1200BC gang members, including Lil Reese. The lyrics claimed the entire City of Riverside. The music video was made in April 2012. In the video, 1200BC members were throwing gang signs and it mentioned the gang monikers of 1200BC members.
In Detective Holmes's opinion, the claiming of the entire City of Riverside would be offensive to Project Crips gang members. It would be a sign of disrespect. Project Crips considered the west side of Riverside its territory. He explained that the claiming of territory by a gang was very important. If another gang claimed their territory, it would cause problems. Holmes opined that if a gang was disrespected, it had to retaliate, or it would be seen as weak. Holmes stated there was always a turf war between Project Crips and 1200BC.
b. Shooting
Schexnayder was good friends with Decatur. On January 19, 2013, Schexnayder drove with Decatur to the Cancun Club in Redlands in Decatur's Jeep. Holland was with them. They arrived at the Cancun Club between 10:00 and 11:00 p.m.; Decatur was scheduled to perform. They went into the club and were in the back VIP area the entire time. During the time they were in the club, Schexnayder did not observe Decatur get into any altercations.
Decatur, Holland and Schexnayder all walked out of the club together; three men approached them. Schexnayder identified them as Duncan, Tolbert and Singh. One of them said "F Lil Reese." One of them, later identified as Tolbert said, "Fuck Do It For Da Riv." Decatur had not performed that song that night. Decatur responded "We not out here for that." Tolbert also said, "I have a burner for you." A "burner" was a gun. Tolbert and one other of the men said "Project Crips." Tolbert asked, "Do you remember me?"
The three men walked away; as they left they said "don't talk tough when we're walking away." One of them tapped his hip, which Schexnayder took to mean he had a gun. Decatur, Schexnayder and Holland waited a few minutes and then someone drove Decatur's Jeep to the front of the club. Decatur got in the driver's side, Schexnayder got into the passenger's seat, and Holland sat in the back. They exited the parking lot.
Henryetta Moore was married to Decatur's cousin and went to the Cancun Club that night to watch Decatur perform. Decatur had put up flyers on Facebook to advertise the performance. Moore drove herself and a friend to the club.
Decatur performed sometime after midnight. She and Decatur danced after his performance. She did not observe Decatur have any problems with anyone while they were in the club. The lights came on in the Cancun Club at 2:00 a.m. and they walked out of the club. Decatur was right behind her as they walked out of the front of the club. Decatur was with Holland and another man she did not know.
As they exited the Cancun Club, three men approached Decatur and the two other men. All three were Black. One of them was short, around 5 feet 8 inches tall and had on a dark colored button-up shirt with a white shirt underneath. The second had darker skin and was wearing a tight, light-colored hoodie with which he appeared to be trying to cover his face. There was a taller person standing behind them.
The shorter one with the button up shirt said, "You do it for the Riv?" It appeared the short one was the leader. Decatur responded that he did not do it for the Riv. The short one responded that he wanted to "catch your fade." Decatur told him that was "whack." There was some discussion about fighting, and the short one said he had something for them in the back. The short one waved for Decatur and the others to go to the back of the club. The entire conversation lasted for only a few minutes. Moore could not identify the three men.
After the conversation ended, the three men walked off towards the back of the Cancun Club. Moore tried to get Decatur to get in her car to take off, but he refused; he thought it was okay because the three men were gone. Decatur got into his own car with Holland and the other man.
As Decatur was driving down Colton Avenue toward Redlands Boulevard, Schexnayder heard gunshots. The gunshots were coming from a white car with four doors that was slightly in front of them. It was either a Chevy or a Dodge. He could not see the faces of the individuals inside but saw a muzzle flash. Someone from the car yelled, Project Crips. Schexnayder heard bullets hitting the Jeep. The flashes came from the passenger's side but he could not recall if the passenger was hanging out the window. The driver's side window was shattered. Decatur was shot in the head and eventually the Jeep came to a stop. Schexnayder heard at least nine shots.
Moore headed toward where she heard shots fired. Decatur's jeep was still moving, and she saw Holland and the "boy in the front" jump out of the vehicle and run towards a gas station. As Moore approached the Jeep was still moving but by the time she put her vehicle in park and exited it, the Jeep had stopped. Moore went up to the driver's side of the Jeep. There was blood everywhere. Decatur appeared to have been shot in the head and was not responding. The police arrived within about one minute.
Schexnayder could see that the white car had slowed down up ahead so he exited the car and ran to hide. Holland also jumped out of the Jeep and ran.
California Highway Patrol Officer Matthew Brownfield was sitting at the intersection of Redlands Boulevard and Alabama Street at around 2:12 a.m. on January 20, 2013. He had a video camera outside his vehicle facing the front of his vehicle. As he and his partner were stopped at Redlands Boulevard, he heard 10 to 15 gunshots. A few seconds later, a vehicle pulled up to the intersection facing Officer Brownfield. Officer Brownfield was alerted to the car because it abruptly stopped at the limit line. It was a white or silver car with four doors and halogen headlights. The passenger side windows were tinted. There were several Black occupants in the vehicle.
A few seconds after that car left, Decatur's Jeep came to a stop near the intersection in front of Officer Brownfield. Officer Brownfield saw no other cars come from the direction of the shots between the time of the gunshots and him seeing the Jeep. There were several bullet holes on the driver's side door and front left fender of the Jeep.
Officer Brownfield testified the vehicle he saw was similar to a Lincoln later determined to be owned by Tolbert.
Jose Villarroel was at a McDonalds near Redlands Boulevard when he heard gunshots. Just prior to hearing the shots, Villarroel saw a California Highway Patrol vehicle pass by the restaurant. Within "a minute or two" after hearing the gunshots, he observed a white vehicle pass by moving "pretty fast." He told the police it was a white sedan with after-market rims.
Redlands Police Officer Paul Davis responded to the shooting. He spoke with Schexnayder. Schexnayder said his name was Jovani but eventually admitted his name was Emery. Schexnayder said that the gun was a handgun and he heard nine gunshots. He said, "There was no fight. There was no fight at all. We left the club and they said they were gonna shoot. They said they were gonna shoot." He said there were three of them. He described the car as a white, four-door sedan and said they were followed from the Cancun Club. One of them yelled Project Crips during the shooting.
Redlands Police Officer Nelson Rodriguez was sent to the Cancun Club after the shooting. He spoke with Morris. Morris was employed as a security guard that night. Morris did not have his identification. He denied he knew anything about the shooting. He had nothing to say and he did not know what happened with the shooting. He denied that he knew anyone who left from the Cancun Club. He told Rodriguez he had to get to his other job and wanted to leave. Morris said his name was Tyrone Day. He also gave Rodriguez a false cellular telephone number and a false address.
Surveillance video was obtained from the Cancun Club by Redlands Police Corporal Kyle Alexander. Alexander observed three subjects arrive at the Cancun Club who were personally greeted by Morris. They were the only persons who Morris personally greeted and the only persons who did not pay the cover charge to enter the club. Morris exited the Cancun Club and walked away just prior to the "mass exodus of everybody exiting the bar."
Two of the subjects exited the Cancun Club at approximately 2:00 a.m.; the third subject followed two or three minutes later; and Decatur exited the club less than a minute after the third subject. On the video, Officer Alexander observed the same white Jeep that Decatur was found shot in, appear in the parking lot. At the same time, he observed a white sedan with after-market rims in the parking lot. He observed the Jeep pull out of the parking lot onto Colton Avenue. He observed the white sedan wait for the Jeep where Colton Avenue merged with Redlands Boulevard. The two cars were parallel at 2:10 a.m. The video showed a flash and then the emergency lights of a police or emergency vehicle. The white sedan matched the description from Villarroel. Officer Alexander determined from the video the white sedan was a Lincoln.
The video surveillance also showed that at 2:22 a.m., Morris returned to the Cancun Club and appeared to be talking on his telephone.
c. Physical Evidence—Casings, Cellular Telephone Calls and Jail Calls
Decatur died from a gunshot wound to his head. At the scene of the shooting, fifteen .9-millimeter casings were found. Fragments of bullets were also found. The casings were in a trail down the road. There was approximately 300 feet between the first casing and the last casing found.
There were 13 "entry point" holes in the Jeep. The bullets entered the Jeep from the front. Bullet holes hit the right front tire and the bumper. One of the bullets "went through the window, hit the top of the seat, went through the . . . top part of the driver's seat back, went through the top of the passenger's side rear seat back and then out through the rear window on the passenger's side." Another bullet struck "the top edge of the passenger's side above the rear door to the passenger's side." The bullets were all fired from a vehicle that was slightly in front of the Jeep. All of the casings were from the same .9-millimeter Luger.
Phone calls were made between Morris and Tolbert on their cellular telephones before and after the shooting. The phone calls were routed through cell towers that pinpointed the area where the calls were made.
On January 19, at 10:25 p.m., a call was made from Tolbert to Morris. Tolbert was in Riverside and Morris's number pinged in Redlands. At 10:26 p.m. there was a call from Tolbert to Morris that lasted a few seconds. Another call from the same phone to Morris was made at 10:27. It lasted for three minutes. There was a call from Morris to Tolbert at 12:01. The call lasted for 36 seconds. Both phones pinged off a tower in Redlands. At 12:02 a.m., on January 20, there was a call from Tolbert to Morris. At 12:04 a.m., a 24-second call from Morris to Tolbert. Both phones were in the Redlands area near the Cancun Club.
At 2:18 a.m., there was a two-second call from Morris to Tolbert. The call was not answered. Another call was made a few seconds later. The call was answered by Tolbert from Morris and lasted nine seconds. At 2:19 a.m., a third call was made from Morris to Tolbert. The call was answered. At 2:22 a.m., there was a call from Morris to Tolbert. The call was answered. On January 21, at 3:16 p.m., a call was made from Tolbert to Morris that went to voicemail. There was another call from Morris to Tolbert at 4:12 p.m., which was answered.
Video surveillance was obtained from four businesses near the Cancun Club and the area of the shooting. The videos showed a white sedan with shiny rims enter the parking lot of a gas station and then circle around back to Redlands Boulevard at 2:11 a.m. At 2:12 a.m., the white sedan drove eastbound on Redlands Boulevard. At 2:13 a.m., the white sedan drove westbound on Redlands Boulevard. Decatur's Jeep merged onto westbound Redlands Boulevard from Colton Avenue; the white sedan came from behind the Jeep, drove next to the Jeep "side by side" and then "the sedan pull[ed] in front." The white sedan continued to travel westbound on Redlands Boulevard.
Tolbert had brothers named Robert and Damar Sowell. Damar called Tolbert from jail on December 13, 2013, and advised him that he was being questioned by the police about the Cancun Club and Tolbert's Lincoln. Tolbert said, "Man—you, you slipping man." Damar responded, "I was. I wasn't going to call but mother-fucker I just, I thought I'd let (inaudible) know about what mother-fuckers came to see me about."
Since two of the witnesses share the same last name, we will refer to them by their first names; no disrespect is intended.
A call was made between Damar and Robert on January 23, 2014. Damar used a different inmate number when making the call. Damar reported that detectives from Redlands had come to the jail to see him. They talked to him about someone being killed at a club in Redlands. The detective asked Damar what kind of car Tolbert drove and showed him a video of three men leaving the club. They asked him about the bouncer at the club, but he said he did not know him. Damar also denied he knew Duncan. Tolbert got on the phone. Damar told Tolbert he watched a video of three men walking out of the club and he denied to the police that he knew any of them. Tolbert asked, "but that (inaudible) on the video what does it show?" Damar told him you could see the bodies but not the faces. It was blurry and Damar denied he could see anyone he knew. The police told Damar that they had phone records of Tolbert calling the club that night. Tolbert told him the police were just lying and fishing for something.
Tolbert was recorded talking to his cousin. She asked him "You seen that shit?" He responded yes. She said, "Alright cause I was kinda amped up and nervous." He responded, "Yea I was for a second till I seen it. It just shit. They just doing the same shit goin fishin that's all."
d. Witnesses who Came Forward after the Shooting
i. Vanessa Felix
Vanessa Felix had been Tolbert's girlfriend for 10 years and they had three children together. Tolbert had several Project Crips tattoos. She identified Singh, who was known as Bug, and Duncan, who was known as Baby J-Dub, in court. Tolbert was known as Little Blake or Ant. She and Tolbert purchased a white Lincoln in May 2012 and put on after-market rims.
Defendant told Felix that he was going to the Cancun Club on January 19. He drove their Lincoln to the Cancun Club. Tolbert told her he liked to go to the clubs to "chill" with his friends and "gang bang." She recalled seeing Tolbert the next morning. She also saw Duncan take something out of the trunk of the Lincoln the next morning.
Several days later, Felix learned about the shooting at the Cancun Club and asked Tolbert about it. Tolbert just told her that someone got shot and died. Tolbert stopped driving the Lincoln, telling her there was something wrong with it. He moved it to his grandfather's house. Tolbert got rid of the Lincoln on February 14, 2014. He told Felix that his brother was being questioned by police about the vehicle, so he got rid of it. Tolbert told her he sold it for $200 and she was mad because it was worth more.
In April or May 2014, she was shown a still from a video of her car by police but she told them it looked like her car but was too nice. Tolbert told her to tell the police he only drove the car during the day. She told police he only drove it during the day, but it was a lie.
She watched the video from outside the Cancun Club when it was posted online. She identified Tolbert, Duncan and Singh as being in the video. She asked Tolbert about the video but he cut her off and asked her why she was talking about it.
Felix had been told by another person prior to watching the video that Singh was in it. She recognized him in the video because of his baby face.
In May 2014, the police talked to her again. They accused her of lying about her car. Felix was arrested in June 2014 for being an accessory after the fact. Felix told them information similar to what she testified to in court even though she had not previously been truthful. She was eventually released and entered into a plea deal; if she testified truthfully her felony could be reduced to a misdemeanor, but it was not guaranteed. She was scared to testify because of the gangs involved.
Tolbert showed Felix a photograph of a gun sometime after January 2013. The clip on the gun was unusually long—longer than the gun itself. Felix had never seen Morris with Tolbert.
ii. Thomas Graham and David Borders
David Borders was Thomas Graham's cousin. He saw Graham more than five times in January and February 2013. Duncan was Borders's nephew. Borders also knew Singh, Morris and Tolbert. He could not recall Damar, Singh, Tolbert and Duncan going to his house on January 20, 2013. He did not recall Graham being present. He also denied he heard them talking about a shooting in Redlands. Borders denied he was a Project Crips member. Graham was known as a snitch; he was referred to in the neighborhood as Officer Graham.
Graham was related to Borders, Duncan, and Singh; Tolbert was like family to him. He knew Singh as "Bug." On January 20, 2013, around 11:00 a.m., he was at Borders's house. Singh, Tolbert, Duncan and Damar were also at Borders's house.
After that day, he was contacted by California Highway Patrol Sergeant Nicholas King asking him if he had information about the shooting. Graham had met King and spoken with him before that day. King set up an interview with Graham after contacting the Redlands Police Department.
Sergeant King indicated that Graham contacted him with information about a shooting in Redlands. Prior to Graham's contact King had no information regarding the shooting.
At trial, Graham could not recall if he told the officers about a conversation he overheard involving Damar, Tolbert, Singh and Duncan. He could not recall being at Borders's house with defendants. He said he was not aware the conversation with the police was recorded. He did not want it recorded. He did not want people in the neighborhood knowing he talked to the police. He was afraid for his safety and the safety of his family. Graham did not recall what he said but admitted he talked to the police because he was mad at Duncan. He lied to the police about Duncan because of a problem Duncan had with Graham's son. Graham denied he overheard anything about the shooting or Duncan admitting he shot someone at the Cancun Club. He did not hear the group talking about the incident. Looking at the transcript of his interview would not make him remember. Graham denied or could not remember making the statements ascribed to him by police. Graham did not know Morris. Graham denied he was a paid informant.
In 2013, Redlands Police Sergeant was a detective assigned to investigate the shooting. He met with Graham at the Riverside County Sheriff's Department on January 29, 2013. He recorded the interview with Graham.
Graham was told the interview was not being recorded. He was told that nothing he said would leave the room. Graham said he found out about the shooting because they were "running off at the mouth." He was at his cousin David Borders's house and "they [Singh, Tolbert, Duncan and Damar]" were talking about it. They were all sitting at a little table in the dining room and he was in the connected living room. Graham said they were at a club when they got into "it" with two other men there. They shot at the car. They knew they had killed one of the occupants and thought they injured another.
They were talking about a rap song involving Eastside gang members talking about Rubidoux. They did not think that Graham was listening. He heard them say they used a .9-millimeter gun with a 16-round clip and Borders also told him that later.
Duncan was doing the talking telling Borders the story. Graham was asked, "Was anybody else talking as though they were there, like firsthand information? Or was it just [Duncan] telling them what happened the previous night?" He responded, "It was, they was all like discussing it . . . ." Duncan pulled the trigger. Graham said that Tolbert was driving, Duncan was shooting and Damar was just there. Graham believed there were four of them present at the time of the shooting. He was not sure that Singh was with them, but he was with them the day after the shooting.
Graham heard them talking about driving a white car during the shooting, which he knew was Tolbert's Lincoln. He heard them say the person shot was from "Eastside." Graham heard them say something about a bouncer named "Big Wicked." Graham knew he was a bouncer at the Cancun Club. They said he was part of the Project Crips and they told Borders he was there that night.
Graham stated Singh was present; "he was just standing around, matter of fact, he walk in this house. There's a double door thing, he's got a set, a couch is right here, couch is right here. Then there's a table, a dining room table around it, they was all around the table, the little round table, they was sitting on that." Graham believed that Singh was with them because he was with them the next day. Further, Duncan and the others were talking freely and openly about the shooting in front of Singh. Graham was certain there were four of them in the car during the shooting.
Detective Flynn showed Graham photographs taken from surveillance cameras outside the Cancun Club. Graham identified Duncan and Tolbert. He also identified Tolbert's Lincoln in the surveillance video. Detective Flynn asked Graham if he needed any help or money. Graham said he was okay and did not need anything. Detective Flynn offered to do whatever he could for Graham.
The only information that had been released to the public prior to Flynn's interview with Graham was that a shooting had occurred and a man was taken to the hospital. The type of firearm used was not disclosed. Graham was shown a photograph of Singh from the parking lot of the Cancun Club and he could not identify him. Detective Flynn agreed that there was nothing in the transcript indicating that Singh was involved in the discussion that day at Borders's house. Detective Flynn was adamant that Graham stated that Singh, Tolbert, Damar and Duncan had possible involvement in the shooting.
Graham contacted Officer King a few months prior to trial and was concerned that his name had been revealed. He was in fear for his life.
iii. Telesha Killebrew
Telesha Killebrew knew Decatur and had been to his performances. He went by B-Dott. She claimed she knew nothing about 1200BC or Project Crips. She had heard of Duncan and Tolbert but did not identify them in court. She did not know Morris. She did not recall calling the police to advise them she had information about Decatur's murder. She denied Duncan told her that he killed Decatur. She recalled nothing that she had told the police. Killebrew claimed she had been threatened by the prosecution that if she did not testify under the subpoena she would be arrested and her children would be taken. She only was testifying because she was being forced to testify.
She recalled the officers asking about her brother, Mark Carter. Carter was home with her the night of the shooting. She knew about a video called "Hit Yo Rivvy" but was not sure if Carter was in it. She denied she ever saw the video. She denied she was afraid of defendants.
Redlands Police Detectives Dominick Povero and Corey Hunt were assigned to investigate the shooting. On May 21, 2014, they released the video surveillance to the public from the Cancun Club. They had already put a wiretap on phones belonging to Tolbert, Morris, and Felix. It was released in order to see if they would discuss the surveillance video on their phones. On May 22, 2014, Killebrew contacted Povero claiming that she may have information about the video. Povero had no previous interactions with Killebrew. Povero agreed to go to her house in Moreno Valley and Detective Hunt went with him. The conversation was recorded.
Killebrew had family in Project Crips but also lived on the east side of Riverside. Whenever she went to the Project Crips territory, they would make comments that they smelled "snails" on her, which was their term for 1200BC members. She had seen the "I Do It For The Riv" video. She said the video was filled with 1200BC gang members. She did not believe that Decatur was part of 1200BC; he associated with its members. Duncan made comments to her that he had been involved in the shooting of Decatur several weeks after the murder. He mentioned Decatur and guns.
Killebrew indicated that in the video surveillance from the Cancun Club it appeared the white sedan was Tolbert's Lincoln. She described Tolbert's Lincoln as being white or off-white. Killebrew identified Duncan as being in the surveillance video at the Cancun Club. She was shown a video from a gas station near the Cancun Club. A car that was in the video looked like Tolbert's Lincoln. She also said that one of the three men who approached Decatur had the same body and features as Tolbert. She said as to Tolbert, "Like, when you know somebody, you know somebody." She had known Tolbert "[f]orever." She could not identify the security guard. As soon as Killebrew saw the video that was released on May 21, she recognized Duncan.
Immediately after the murder, she heard it was Project Crips who had done the shooting. She indicated that Duncan hated 1200BC members. Killebrew advised the detectives that Carter made a song called "Hit Yo Rivvy," which was a song "dissin'" the 1200BC gang members and included language about the Decatur incident. During the recorded conversation, Killebrew and the detectives watched the Hit Yo Rivvy video. She identified Carter in the video. Some of the participants in the video were wearing shirts with "1200" and a snail—both had been crossed-out.
Killebrew called Detective Hunt several weeks prior to the preliminary hearing. She was upset that she was being called to testify at the preliminary hearing. Killebrew advised Detective Hunt that she had received a subpoena with her name on it and that this caused her problems. She did not want to go to court and would refuse to say anything if she testified. She insisted that she and her family were at risk.
e. Additional Evidence
Detective Hunt was able to obtain video from inside the Cancun Club. He recognized Duncan, Tolbert and Morris. He also saw Decatur.
Detective Povero obtained a flyer advertisement for Decatur's performance at the Cancun Club.
Morris was interviewed by Detective Povero and Sergeant Hardy on January 24, 2014. They told Morris they wanted to talk to him about the shooting at the Cancun Club. He was shown a photograph of Decatur; and he knew Decatur was the one who had gotten shot. Morris did not understand why they were talking to him again because he knew nothing about the shooting. Morris was shown photographs of Tolbert, Duncan and Damar. He did not know the names of the three men and denied they were present the night of the shooting. He may have had contact with them at the club, but he did not have a personal relationship with any of them. He was not friends with any of the three. He had no other contact with them. He was not shown a photograph of Singh. Singh was not part of the investigation at that time.
Detective Holmes was recalled. He had numerous previous contacts with Borders. It was his opinion that Borders was a Project Crips gang member. Holmes indicated that Graham would not be allowed to be in the presence of other gang members if they thought he was an informant. A witness who recanted testimony at trial would be seen in a better light with the gang.
Detective Holmes testified as a gang expert. Defendants do not raise any issues as to sufficiency of the evidence in support of the gang enhancements so only a brief recitation of some of the facts supporting the gang enhancement need be addressed.
Several videos taken from the interior of the Cancun Club were shown. Tolbert, Duncan and Singh were all together at the Cancun Club. Duncan and Tolbert were in the bar. Singh was also seen in a video with Duncan while Duncan was making a gang sign.
A video of Duncan in a park in Jurupa Valley was shown to the jury. The park was in West Side Riva territory. He was with Damar and threatened gang members while holding a gun. Duncan was wearing a hat associated with Project Crips.
Detective Holmes opined that the shooting of Decatur was done for the benefit of the Project Crips gang as it increased the status and reputation of Project Crips.
2. DEFENSE CASE
Singh called Basil Allen Jr. Allen was working at the Cancun Club on January 19, 2013. He was the security supervisor. He interacted with three men who were outside the club around 1:40 a.m. He advised them they could not loiter outside the club. One had on baggy pants and a big blue shirt, which violated the dress code at Cancun Club and could not be admitted. The other two had on T-shirts and immediately walked away. They all walked to a white vehicle in the parking lot. They were joined by two other men. All five of the men got into the white vehicle. None of the five men were defendants. The white vehicle had stock rims and the windows were not tinted.
Tolbert recalled Detective Holmes to have the Do It For The Riv video played. There were no specific words in the video that 1200BC claimed all of Riverside. Decatur did not disrespect Project Crips outright. Holmes interpreted the words as being 1200BC claiming all of Riverside. The song only came to his attention because it was mentioned during the confrontation at the Cancun Club, Holmes believed based on the video that Decatur was associating with 1200BC members. Decatur was not a documented 1200BC member.
DISCUSSION
A. PRETRIAL ISSUES
1. IMPROPER ADMISSION OF VIDEO INTO EVIDENCE
Duncan contends the trial court improperly introduced a video made prior to the shooting depicting him waving a gun in a rival gang's territory and threatening rival gang members. Duncan insists the video was not admissible pursuant to Evidence Code sections 352 and 1101, subdivision (b). Specifically, it was cumulative on the issue of his involvement in the Project Crips and the intent of the shooter, which was clear in this case.
a. Additional Factual History
Prior to trial, Duncan objected to a video of him in a rival gang's territory claiming Project Crips membership and waving a gun. He threatened to use the gun against rival gang members. The People sought admission of the video to show his intent to commit premediated and deliberate murder in this case, and to prove the gang enhancements.
The video was purportedly taken on April 12, 2012. The trial court reviewed the video. In the video, Duncan is seen with Damar and other men. They are all drinking something out of red solo cups and Duncan had a gun. Duncan stated "Fuck Rivas" and he "claim[ed]" Project Crips. He also dared the West Side Rivas to come get him in the park and he was not afraid of them. Duncan's counsel objected on the grounds of relevance and it was unduly inflammatory and prejudicial. It did not tend to prove or disprove that he killed Decatur. The prosecutor argued that it was relevant to the section 186.22 gang allegations and crime and it went to his motive and intent regarding rival gangs. Duncan's counsel objected that the men in the video were clearly "in a high state of intoxication" and talking amongst themselves.
The trial court noted that the People had to prove a specific intent to kill. The People also had to prove the crime was committed for the benefit of the gang. The video was relatively close in time to the shooting. It was highly relevant as to whether Duncan was involved in criminal street gang activity. It was highly probative as to whether he used lethal force. The trial court would give a limiting instruction as to the other defendants. It further found the video's probative value outweighed the prejudice. The video could be introduced. The video was shown to the jury.
The jury was instructed as to how they should consider the video as follows: "The People presented evidence that the defendant Jamaal Duncan made threats to commit violent acts against gang members." The jury was instructed it must first determine by a preponderance of the evidence if he committed such act. If they decided he did commit such act, it could be used for the limited purpose to decide whether "The defendant acted with the intent to murder Kevin Decatur, the attempted murder [of] Emery Schexnayder, the attempted murder of Dante Holland and the intent to promote, further or assist the criminal conduct of gang members in this case." The jury was admonished it could not use the evidence to conclude that Duncan had a bad character or was disposed to commit the crime. Moreover, it was only one factor in determining his guilt and the "People must still prove each charge and allegation beyond a reasonable doubt."
b. Analysis
Only relevant evidence is admissible and should only be admitted if the risk of undue prejudice does not outweigh the probative value. (Evid. Code, §§ 350, 352.)
Evidence Code section 1101, subdivision (b), provides that evidence of prior criminal conduct is admissible when relevant to prove some fact in issue, such as motive, intent, knowledge, identity or common plan or scheme. "[E]vidence related to gang membership is not insulated from the general rule that all relevant evidence is admissible if it is relevant to a material issue in the case other than character, is not more prejudicial than probative, and is not cumulative." (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1167.)
Gang membership is oftentimes probative to show a motive and intent for the crime committed. (People v. Gonzalez (2012) 210 Cal.App.4th 724, 737-738 [admission of gang evidence was not an abuse of discretion because it was probative of defendant's motive for shooting at victim]; see also People v. Albarran (2007) 149 Cal.App.4th 214, 223-224 (Albarran).) The video showed both criminal conduct—brandishing the gun in public—and gang membership. The admission of this evidence is subject to exclusion by Evidence Code section 352 if its probative value is "substantially outweighed" by the probability its admission will take too much time, "create substantial danger of undue prejudice," confuse the issues or mislead the jury. (Evid. Code, § 352.) "When an objection to evidence is raised under Evidence Code section 352, the trial court is required to weigh the evidence's probative value against the dangers of prejudice, confusion, and undue time consumption. Unless these dangers 'substantially outweigh' probative value, the objection must be overruled." (People v. Cudjo (1993) 6 Cal.4th 585, 609.)
"[T]he decision on whether evidence, including gang evidence, is relevant, not unduly prejudicial and thus admissible, rests within the discretion of the trial court. [Citation.] 'Where, as here, a discretionary power is statutorily vested in the trial court, its exercise of that discretion "must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]" [Citation.]' [Citations.] It is appellant's burden on appeal to establish an abuse of discretion and prejudice." (Albarran, supra, 149 Cal.App.4th at pp. 224-225; see also People v. Scott (2011) 52 Cal.4th 452, 491.)
Here, the video was relevant to show Duncan's participation in the Project Crips gang to support the gang enhancements. To establish those allegations, the People had to prove the charged crimes were committed "for the benefit of, at the direction of, or in association with [a] criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members." (§ 186.22, subd. (b)(1).)
Duncan is seen with Damar, a known Project Crips member, in a park claiming Project Crips. Duncan then threatens the rival gang West Side Riva while waving around a gun. This was relevant to show his loyalty to Project Crips, his animosity toward rival gangs and that he was actively involved in the gang. It also helped to prove his intent that he committed the shooting on behalf of the gang because it would increase his status in the gang and increase the reputation of the gang. These were all relevant to proving the gang enhancements.
Moreover, the prosecution had the burden of establishing that Duncan committed the three murders with the intent to kill. Duncan had not conceded his intent at trial. The video tended to show that Duncan wanted to kill rival gang members or those who disrespected the gang. It also showed he had the intent to kill those who disrespected his gang. This was relevant to show he committed premeditated and deliberate murder because of the disrespect Decatur had exercised in making the music video.
Duncan complains the evidence was cumulative and unnecessary as he did not dispute that he was a member of the Project Crips and the evidence clearly established his intent. While Detective Holmes testified about the Project Crips and the fact that Duncan was a member, no better evidence existed than Duncan himself saying Project Crips. The prosecution could admit this most persuasive evidence. Additionally, it was the only evidence that Duncan was familiar with guns and was willing to handle a gun. Finally, it showed his personal animosity toward rival gangs, which was not part of the testimony given by Holmes.
The evidence was clearly probative and was not overly prejudicial. The video did not take an inordinate amount of time to show. It was also already known by the jury that Duncan had gang tattoos and was an active member of Project Crips. Based on the foregoing, the trial court properly admitted the evidence as it was highly probative and was not unduly prejudicial.
Even if the trial court erred by admitting the video, such error was not prejudicial as the result of the trial "would have been the same, absent the error, under the 'reasonably probable' standard of People v. Watson (1956) 46 Cal.2d 818, 836." (Albarran, supra, 149 Cal.App.4th at pp. 228-229.) Here, the evidence that Duncan was the shooter and that he was involved in the murder of Decatur and the attempted murders of Schexnayder and Holland was overwhelming even without the video. Duncan was clearly identified as being present at the Cancun Club and was involved in confronting Decatur. During the shooting someone yelled Project Crips, clearly claiming the shooting was being done on behalf of the gang. Graham heard Singh, Tolbert and Duncan talking about getting into "it" with Decatur before the shooting and that they knew they had killed him. Duncan shot at least 13 times into the Jeep. Duncan was also seen making gang signs in the Cancun Club prior to the shooting. The next day, Felix observed him take something out of the trunk of hers and Tolbert's Lincoln and he was identified as the shooter by Graham.
Duncan claims in this argument that his right to a fair trial was denied but concedes that Watson error applies in assessing prejudice.
Based on the foregoing evidence of defendant being the shooter, the fact he shot at least 13 rounds into the Jeep, and the yelling of the Project Crips gang, there was overwhelming evidence of Duncan's guilt even without the video.
2. REMOVAL OF JUROR
Morris, Singh and Duncan all contend the trial court erred by failing to excuse Juror No. 6 for cause during trial.
Singh joins in the arguments of Duncan and Morris but states that the argument applies to Juror 2. It is clear Singh's argument applies to Juror 6.
a. Additional Factual History
During a break in the proceedings at trial, the bailiff advised the trial court that Juror 6 had told the bailiff she overheard a witness in the hallway describing the jurors to the person she was talking to on the phone. The witness was later identified as Killebrew. Alternate Juror 1 also told the bailiff he or she overheard Killebrew on the phone stating that the case was bullshit. Juror 1 also reported hearing Killebrew talking about the jurors.
The trial court inquired of Juror 6. Juror 6 indicated she was not comfortable talking in front of defendants. The trial court said it could not remove defendants and she would have to be excused if she would not speak in front of them. Thereafter, defendants agreed to waive their presence.
Juror 6 indicated that Killebrew was on the phone in the morning by the courtroom. When the jury approached she said, "Oh, well, here comes the jury, and they all have—." Juror 6 walked away at that point. In addition, as they exited for lunch, she heard Killebrew say, "Oh here comes the jury and one of them's got on—." Juror 6 did not hear the rest. Juror 6 was concerned that Killebrew was describing the jurors to someone. Juror 6 stated, "I think with the nature of the case, being a normal layperson, I don't want someone describing what I look like to anyone out there." Juror 6 indicated that four other jurors also heard comments. She was not comfortable talking in front of defendants because of their affiliations outside the court.
The trial court asked her about continuing the trial with defendants present. She responded, "Well, I mean, I think if that's part of the trial and they're in here, then they're in here. I can't do anything about that." She was okay with defendants being present during the trial. When asked if this affected her ability to be fair or impartial, she responded, "Absolutely not." These events would not interfere with her decision in the case.
Juror 6 denied that she felt threatened by defendants based on what she overheard. She did not think defendants had anything to do with the statements made by Killebrew. She was adamant she could still be fair and impartial. She would not hold it against defendants.
Juror 1 was also interviewed and overheard Killebrew say "this jury is very unfair. There's only one that looks half black. I can't believe this is the jury." It made her feel very uncomfortable and scared. It did not change her ability to be fair and impartial; she was just uncomfortable. She denied she was upset; she was just uncomfortable. She did not want to be excused.
Juror 7 overheard Killebrew talking loudly on her phone. She heard her say that the jurors were unfair and that the person should see what they looked like. Juror 7 did not "like it" and it gave her anxiety. However, she could still be fair and impartial. She absolutely would not hold the comments against defendants. Juror 7 felt Killebrew was absolutely trying to intimidate the jury. She also relayed that several times while in the hallway she felt that people were staring at her and trying to intimidate her.
Jurors 2, 3, 4, 5, 8, 11 and 12 had been told by other jurors that someone was in the hallway describing them. They had not personally seen or heard anything. It did not impact their ability to be fair and impartial. Juror 8 reported that at the beginning of the trial, someone kept staring at the jurors. He was not intimidated. Juror 9 had heard nothing. Juror 10 had heard Killebrew talking on her phone that she was not supposed to be talking about the trial. He had also heard jurors state they were alert when walking to their cars and drove different ways home. Juror 10 could be fair and impartial.
Morris's counsel asked only that Juror 6 be removed. Morris explained she was the only juror who appeared visibly upset even though the incident occurred several hours before she was called into court. The trial court disagreed that she looked visibly upset. She seemed calm and rational. Singh's counsel was concerned Juror 6 was the only one who did not want to speak in front of defendants. Duncan joined in the motion to remove Juror 6. The prosecutor believed Juror 6 answered the questions like the other jurors and indicated she could be fair and impartial.
The trial court stated that Juror 6 was calm and rational. She was not emotional. She expressed concerns, but not in an emotional way. She stated that she could be fair and impartial. The trial court denied the request to remove Juror 6. The trial court also intended to advise Killebrew that trying to influence a jury was a felony. The prosecutor stated that Killebrew would not be sitting in the hallway and would be escorted to the court for her testimony. The trial court noted that the jury was no longer going to be waiting in the hallway.
b. Analysis
Morris, Duncan and Singh argue that Killebrew's actions in front of Juror 6 constituted jury tampering and raises a rebuttable presumption of prejudice. Duncan also claims that Juror 6 committed misconduct when she consulted with fellow jurors if they heard the statements instead of immediately reporting the incident to the court. Morris, Duncan and Singh insist there was a strong indication that Juror 6 was biased against defendants. She was the only juror to ask to discuss the issue outside the presence of defendants.
Initially, the People insist that to the extent Duncan and Morris claim that Killebrew's comments constituted spectator misconduct, they waived that claim by failing to raise it below. Both Morris and Duncan deny they raised a spectator misconduct claim and we need not address it.
A defendant has a state and federal Constitutional right to trial by an impartial jury. (People v. Merriman (2014) 60 Cal.4th 1, 49; In re Hitchings (1993) 6 Cal.4th 97, 110.) "A juror may be substituted if 'upon . . . good cause shown to the court [the juror] is found to be unable to perform his [or her] duty. . . ." [Citations]. The determination of 'good cause' [to excuse a juror] lies within the discretion of the trial court. [Citations.] That discretion is limited, however, in that the juror's inability to perform the functions of a juror must appear in the record as a demonstrable reality." (People v. Green (1995) 31 Cal.App.4th 1001, 1011-1012.)
"[W]here a verdict is attacked for juror taint, the focus is on whether there is any overt event or circumstance, 'open to [corroboration by] sight, hearing, and the other senses' [citation], which suggests a likelihood that one or more members of the jury were influenced by improper bias." (In re Hamilton (1999) 20 Cal.4th 273, 294 (Hamilton), fn. omitted.) "A sitting juror's involuntary exposure to events outside the trial evidence, even if not 'misconduct' in the pejorative sense, may require similar examination for probable prejudice. Such situations may include attempts by nonjurors to tamper with the jury, as by bribery or intimidation." (Id. at pp. 294-295.) "Misconduct by a juror, or a nonjuror's tampering contact or communication with a sitting juror, usually raises a rebuttable 'presumption' of prejudice." (Id. at p. 295.)
"[W]hether an individual verdict must be overturned for jury misconduct or irregularity ' " ' is resolved by reference to the substantial likelihood test, an objective standard.' " ' [Citations.] "Any presumption of prejudice is rebutted, and the verdict will not be disturbed, if the entire record in the particular case, including the nature of the misconduct or other event, and the surrounding circumstances, indicates there is no reasonable probability of prejudice, i.e., no substantial likelihood that one or more jurors were actually biased against the defendant." (Hamilton, supra, 20 Cal.4th at p. 296.)
Here, Juror 6 was subject to jury tampering by Killebrew. However, based on the record, prejudice has been rebutted. Juror 6 was called to speak with the trial court and she asked that defendants not be present. She did so because she was afraid of who may be outside the courtroom, not because of defendants. She was told she would be removed if she insisted on defendants being removed during the hearing. Thereafter, defendants agreed to waive their presence. Juror 6 denied that she felt threatened by defendants based on what she overheard. She did not think defendants had anything to do with the statements made by Killebrew. She had no problem with them being present at trial. She was adamant she could still be fair and impartial. She would not hold it against defendants. Moreover, the trial court found, as opposed to the observation by counsel, that she was calm and did not appear frightened.
Based on the record, there was only one brief incident in which Juror 6, and other jurors, overheard Killebrew talking about the jurors. There is no evidence any further incidents occurred. Juror 6 advised the bailiff of the incident and proceeded to openly and honestly answer the trial court's questions. She expressed the same concerns as the other jurors. There is "no substantial likelihood that [Juror 6 was] actually biased against the defendant[s]." (Hamilton, supra, 20 Cal.4th at p. 296.)
Duncan contends Juror 6 violated the court's instructions by first talking to other jurors about what she heard from Killebrew rather than immediately contacting the bailiff. "The violation of the court's instructions constitute[s] misconduct." (People v. Lavender (2014) 60 Cal.4th 679, 687.) Here, the jury was instructed with CALCRIM No. 101, which provides in pertinent part, "If you receive any information about this case from any source outside of the trial, even unintentionally, do not share that information with any other juror. If you do receive such information, or if anyone tries to influence you or any juror, you must immediately tell the bailiff." It is not entirely clear from the record when Juror 6 spoke with other jurors about what she heard. Assuming she talked to the other jurors prior to advising the bailiff, this would constitute misconduct. Nonetheless, there is no evidence of bias or prejudice. As noted, Juror 6 adamantly denied that what she heard improperly influenced her or that she was biased against defendants. The trial court did not abuse its discretion by refusing to remove Juror 6 for cause.
B. TRIAL ISSUES
1. MORRIS—INSUFFICIENT EVIDENCE TO SUPPORT ACCESSORY TO MURDER
Morris contends insufficient evidence was presented to support he was an accessory to the murder of Decatur. He insists the evidence does not support that he gave a false alibi to protect the other defendants to support a conviction of violating section 32.
"When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] . . . We presume in support of the judgment the existence of every fact the trier of fact reasonably could infer from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] A reviewing court neither reweighs evidence nor reevaluates a witness's credibility. [Citation.]" (People v. Lindberg (2008) 45 Cal.4th 1, 27.)
Section 32 defines accessory as "Every person who, after a felony has been committed, harbors, conceals or aids a principal in such felony, with the intent that said principal may avoid or escape from arrest, trial, conviction or punishment, having knowledge that said principal has committed such felony or has been charged with such felony or convicted thereof, is an accessory to such felony."
"The crime of accessory consists of the following elements: (1) someone other than the accused, that is, a principal, must have committed a specific, completed felony; (2) the accused must have harbored, concealed, or aided the principal; (3) with knowledge that the principal committed the felony or has been charged or convicted of the felony; and (4) with the intent that the principal avoid or escape from arrest, trial, conviction, or punishment." (People v. Plengsangtip (2007) 148 Cal.App.4th 825, 836.) "It is clear that certain lies or 'affirmative falsehoods' to authorities, when made with the requisite knowledge and intent, will constitute the aid or concealment contemplated by section 32 . . . [¶] . . . [¶] In contrast to affirmative falsehoods, the mere passive failure to reveal a crime, the refusal to give information, or the denial of knowledge motivated by self-interest does not constitute the crime of accessory." (Ibid.)
Here, the evidence established that Morris, Duncan, Singh and Tolbert were all members of the Project Crips gang. On the night of the shooting, there were phone calls between Tolbert and Morris before the shooting. Further, calls were exchanged between Morris and Tolbert after the shooting. Morris was also seen letting the three defendants into the Cancun Club for free. Graham told officers that Morris's name was mentioned the next day when Duncan and the others were discussing the shooting. Despite this evidence, Morris told Officer Rodriguez the night of the shooting that he knew nothing about it and denied that he knew anyone who left the Cancun Club just prior to the shooting.
More than a year after the shooting Duncan continued to deny, this time to Detective Povero and Sergeant Hardy on January 24, 2014, that he had any personal contact with Duncan or Tolbert or that he personally knew them. Morris affirmatively lied about Duncan and Tolbert being present that night at the Cancun Club one year later. Hardy asked "Do you recognize any of these guys? They were supposedly at the club that night." Morris was shown photographs of Duncan, Tolbert and Damar. He responded, "Mm. Uh, nah man, I see a lot of people." He was asked, "You don't know any of these guys?" He responded, "Nah. If I do know em . . . [¶] . . . [¶] If I do, if I know, if I know these guys, man, it's in traffic, you know what I mean?" He was then asked, "Okay. But you, you don't have a personal relationship or you don't know any of these guys?" He responded, "No, not personal." He was asked, "You've, you have had no contact with 'em other than maybe at the club or somethin' " Morris responded, "Other than maybe at the club or at a gas station . . . ." He also stated, "You know what I mean? These guys right here, I may have seen 'em around." Officer Hardy asked, "But you don't know their names or haven't had any . . . [¶] . . . [¶] contact with them or anything like that?" Morris responded, "No. I couldn't tell you nothin' like that."
The jury reasonably could conclude that Morris was presenting affirmative falsehoods to the police to conceal that Duncan and Tolbert were involved in the shooting. Morris clearly had contact with them prior to and after the shooting. He denied to Officer Rodriguez that he knew anyone at the club that night. He continued to conceal the fact they were present at the Cancun Club one year later when interviewed by Sergeant Hardy and Detective Povero. The jury could reasonably interpret Morris's statements to be that defendants were not at the Cancun Club. There was sufficient evidence presented to support his conviction of violating section 32.
2. TOLBERT, SINGH AND DUNCAN—INSUFFICIENT EVIDENCE AND INSTRUCTIONAL ERROR ON KILL ZONE THEORY
Tolbert and Singh in their opening briefs, joined by Duncan, insisted the kill zone theory for the attempted murder convictions in counts 2 and 3 were not supported by factually adequate evidence. Further, the evidence supports that the jury relied on this theory in convicting them of the attempted murders of Schexnayder and Holland. Singh and Tolbert further contended, joined by Duncan, that since there was insufficient evidence presented to support the kill zone theory, the jury was improperly instructed on that theory and the instruction on the kill zone theory for the two attempted murders was erroneous.
On June 24, 2019, after the briefs were filed in this court, the California Supreme Court issued its opinion in People v. Canizales (2019) 7 Cal.5th 591 (Canizales), which significantly restricted the kill zone theory of attempted murder. We gave Tolbert, Singh, Duncan and the People an opportunity to address Canizales in supplemental briefing and at oral argument. We conclude, following the California Supreme Court's decision in Canizales, the trial court erred by instructing the jurors on the kill zone theory as the circumstances of this case do not support that the only reasonable inference from the evidence was that defendants intended to kill everyone in the zone of fatal harm to ensure the primary target's death. Since the prosecutor relied exclusively on the kill zone theory, such instructional error was prejudicial. We therefore reverse the attempted murder convictions for Tolbert, Singh and Duncan based on instructional error.
Here, the jury instructions were discussed off the record. There was no discussion of the kill zone theory. The jury was instructed with CALCRIM No. 600 that to find defendants guilty of attempted murder, they must find "1. The defendant took at least one direct but ineffective step toward killing another person; [¶] AND [¶] 2. The defendant intended to kill that person." It further was instructed on a direct step and the intent to kill. It was then instructed, "A person may intend to kill a specific victim or victims and at the same time intend to kill everyone in a particular zone of harm or 'kill zone.' In order to convict the defendant of the attempted murder of Emery Schexnayder or Dante Holland, the People must prove that the defendant not only intended to kill Kevon Decatur but also either intended to kill Emery Schexnayder or Dante Holland, or intended to kill everyone within the kill zone. If you have a reasonable doubt whether the defendant intended to kill Emery Schexnayder or Dante Holland or intended to kill Kevon Decatur by killing everyone in the kill zone, then you must find the defendant not guilty of the attempted murder of Emery Schexnayder or Dante Holland." There was no definition of "kill zone" given to the jury.
" 'The trial court has the duty to instruct on general principles of law relevant to the issues raised by the evidence [citations] and has the correlative duty "to refrain from instructing on principles of law which not only are irrelevant to the issues raised by the evidence but also have the effect of confusing the jury or relieving it from making findings on relevant issues." [Citation.] "It is an elementary principle of law that before a jury can be instructed that it may draw a particular inference, evidence must appear in the record which, if believed by the jury, will support the suggested inference." ' " (People v. Alexander (2010) 49 Cal.4th 846, 920-921.)
"Attempted murder requires proof of a direct but ineffectual act done towards killing another human being and the specific intent to unlawfully kill another human being." (People v. Campos (2007) 156 Cal.App.4th 1228, 1242.) "[I]ntent to kill does not transfer to victims who are not killed, and thus 'transferred intent' cannot serve as a basis for a finding of attempted murder." (People v. Perez (2010) 50 Cal.4th 222, 232; see People v. Bland (2002) 28 Cal.4th 313, 326-327 (Bland).) "Someone who in truth does not intend to kill a person is not guilty of that person's attempted murder even if the crime would have been murder—due to transferred intent—if the person were killed. To be guilty of attempted murder, the defendant must intend to kill the alleged victim, not someone else. The defendant's mental state must be examined as to each alleged attempted murder victim. Someone who intends to kill only one person and attempts unsuccessfully to do so, is guilty of the attempted murder of the intended victim, but not of others." (Bland, at p. 328.) However, ". . . although the intent to kill a primary target does not transfer to a survivor, the fact the person desires to kill a particular target does not preclude finding that the person also, concurrently, intended to kill others within what it termed the 'kill zone' " for attempted murder. (Id. at p. 329.)
In Bland, supra, 28 Cal.4th 313, the defendant approached a vehicle containing the intended victim and two passengers. The defendant shot at the driver with a .38-caliber handgun and the driver tried to drive away. The defendant and his cohort continued to shoot at the vehicle killing the driver and wounding the passengers. (Id. at p. 318.) The defendant was convicted of attempted premeditated and deliberate murder of the passengers based on creating a kill zone by firing a flurry of bullets into the car. (Id. at pp. 318, 330-331.) The California Supreme Court found that even if the jury concluded that defendant primarily intended to kill the driver, "it could reasonably also have found a concurrent intent to kill those passengers when defendant and his cohort fired a flurry of bullets at the fleeing car and thereby created a kill zone. Such a finding fully supports attempted murder convictions as to the passengers." (Id. at p. 330-331, fn. omitted.) The Bland court found that the evidence "virtually compelled" a finding that the defendant intended to create a kill zone. (Id. at p. 333.)
In Canizales, supra, 7 Cal.5th 591, the California Supreme Court did not reverse Bland but sought to significantly restrict the kill zone theory. In Canizales, between 10 and 30 people were at an outdoor party. (Id. at p. 599.) The victims ran away when the defendant's confederate shot multiple times. (Id. at p. 600.) Neither of the intended targets was hit by a bullet, but a bystander was struck in the abdomen. (Ibid.) Five casings were found at the scene. (Ibid.)
The California Supreme Court in Canizales addressed the kill zone theory and held, "[T]he kill zone theory for establishing the specific intent to kill required for conviction of attempted murder may properly be applied only when a jury concludes: (1) the circumstances of the defendant's attack on a primary target, including the type and extent of force the defendant used, are such that the only reasonable inference is that the defendant intended to create a zone of fatal harm—that is, an area in which the defendant intended to kill everyone present to ensure the primary target's death—around the primary target; and (2) the alleged attempted murder victim who was not the primary target was located within that zone of harm. Taken together, such evidence will support a finding that the defendant harbored the requisite specific intent to kill both the primary target and everyone within the zone of fatal harm." (Canizales, supra, 7 Cal.5th at p. 607, italics added.)
It created the following rule: "In determining the defendant's intent to create a zone of fatal harm and the scope of any such zone, the jury should consider the circumstances of the offense, such as the type of weapon used, the number of shots fired (where a firearm is used), the distance between the defendant and the alleged victims, and the proximity of the alleged victims to the primary target. Evidence that a defendant who intends to kill a primary target acted with only conscious disregard of the risk of serious injury or death for those around a primary target does not satisfy the kill zone theory . . . the kill zone theory does not apply where 'the defendant merely subjected persons near the primary target to lethal risk. Rather, in a kill zone case, the defendant has a primary target and reasons [that] he cannot miss that intended target if he kills everyone in the area in which the target is located. In the absence of such evidence, the kill zone instruction should not be given. We believe our formulation of the kill zone theory here guards against the potential misapplication of the theory, and is consistent with Bland . . . and the prosecution's burden of proving each element of an offense beyond a reasonable doubt." (Canizales, supra, 7 Cal.5th at p. 607, fn. omitted.)
The California Supreme Court noted, "Past appellate court opinions articulating the kill zone theory are incomplete to the extent that they do not require a jury to consider the circumstances of the offense in determining the application of the kill zone or imply that a jury need not find a defendant intended to kill everyone in the kill zone as a means of killing the primary target, even if their description of the theory is otherwise consistent with our opinion here." (Canizales, 7 Cal.5th at p. 608, fn. 5.) The California Supreme Court cautioned, "We emphasize that going forward trial courts must exercise caution when determining whether to permit the jury to rely upon the kill zone theory. Indeed, we anticipate there will be relatively few cases in which the theory will be applicable and an instruction appropriate." (Id. at p. 608.)
The Canizales court then found that no substantial evidence supported a reasonable inference that defendants intended to kill everyone in the kill zone. (Canizales, supra, 7 Cal.5th at p. 611.) The Supreme Court reasoned that the circumstances of the shooting did not support the inference that defendants intended to create a zone of fatal harm around their rival gang member. (Ibid.)
Here, the evidence established that the target was Decatur based on interactions with defendants prior to the shooting at the Cancun Club. Decatur was driving his Jeep down the street when defendants drove next to him and shot 13 to 15 times into the vehicle, hitting Decatur in the head. Holland and Schexnayder—one of whom was in the passenger's seat and the other in the backseat—were not shot. All of the bullet holes were centered around the driver's side of the vehicle. Based on this evidence, we cannot find that the only reasonable inference from the evidence was that defendants created a kill zone and Holland and Schexnayder were within the scope of the zone. The location of the bullets strongly suggest that Decatur was the target and that defendants only subjected Holland and Schexnayder to lethal risk. As such, insufficient evidence supported the trial court's instruction on kill zone theory.
Further, we conclude such instructional error was prejudicial. Here, the jury was instructed that it could find defendants guilty of attempted murder based either on a finding that defendants intended to kill Holland and Schexnayder or that Holland and Schexnayder were in the kill zone. There was no definition of kill zone given and therefore it was not asked to make a determination as to the scope of the zone or whether Holland and Schexnayder were in the zone. Moreover, although the jury was presented with a legally supported theory—that defendants also intended to kill Holland and Schexnayder—based on the arguments of the prosecutor and the evidence, we cannot say "beyond a reasonable doubt that a reasonable jury would conclude defendants targeted [Holland and Schexnayder] specifically." (Canizales, supra, 7 Cal.5th at p. 617.) As recently stated in People v. Aledamat (Aug. 26, 2019, S248105) ___ Cal.5th ___ [2019 Cal. LEXIS 6236, *7], if it is not clear beyond a reasonable doubt that jurors would have rendered the same verdict absent the error, the conviction must be reversed.
The prosecutor only argued the kill zone theory as to the attempted murders, stating that "What needs to be shown is that the defendants not only intended to kill Kevon Decatur, but they also either intended to kill Emery Schexnayder or Dante Holland, or intended to kill everyone within the kill zone. And in this case, what we have is we have the three victims who are in a vehicle that's being shot at repeatedly. And as the evidence will show, it clearly shows an intent to kill everyone within the kill zone within that vehicle." This was the only argument that the prosecutor could make based on little or no evidence presented to support that Duncan actually intended to kill Holland and Schexnayder. However, this could have confused the jurors because they were not given any definition of kill zone, and as stated previously, this was not the only reasonable inference from the evidence. It is likely that the jurors relied on the kill zone theory to convict defendants and based their verdict on an instruction that should not have been given.
We reverse the attempted murder convictions of Duncan, Tolbert and Singh in counts 2 and 3 based on instructional error.
Our reversal does not foreclose the People from retrying Duncan, Tolbert and Singh under another theory to hold them accountable for the actions against Holland and Schexnayder.
3. SINGH—INSUFFICIENT EVIDENCE HE PERSONALLY COMMITTED OR AIDED AND ABETTED MURDER
Singh contends the evidence was insufficient to support either that he personally committed or aided and abetted the offenses in counts 1, 2 and 3, and there was insufficient evidence to support his conviction of committing the murders on behalf of the gang in count 4. He insists there was insufficient evidence he was present during the time of the shooting. At most, the evidence established he was present during the argument at the Cancun Club, but no evidence established he was in the car at the time of the shooting. Circumstantial evidence supports that Singh was present during the shooting with his fellow gang members. As such, the evidence supports his convictions in counts 1 and 4.
We have reversed Singh's convictions in counts 2 and 3, ante.
We previously set forth the standard for evaluating the sufficiency of the evidence. Importantly, we must presume in support of the judgment the existence of every fact the jury "reasonably could infer from the evidence" and we do not reevaluate "a witness's credibility." (People v. Lindberg, supra, 45 Cal.4th at p. 27.) Singh contends there was no evidence he aided and abetted the shootings because there was no evidence he was in Tolbert's car at the time of the shooting.
" 'All persons concerned in the commission of a crime, . . . whether they directly commit the act constituting the offense, or aid and abet in its commission, . . . are principals in any crime so committed.' [Citation.] Accordingly, an aider and abettor 'shares the guilt of the actual perpetrator.' [Citation.] The mental state necessary for conviction as an aider and abettor, however, is different from the mental state necessary for conviction as the actual perpetrator. [¶] The actual perpetrator must have whatever mental state is required for each crime charged, [e.g.] murder, and attempted murder. An aider and abettor, on the other hand, must 'act with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense.' " (People v. Mendoza (1998) 18 Cal.4th 1114, 1122-1123.) Section 186.22, subdivision (a), penalizes "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."
Singh essentially asks this court to reconsider the jury's verdict. Based on the evidence presented, the jury could reasonably conclude that Singh was with Duncan and Tolbert in the car at the time of the shooting. Duncan, Singh and Tolbert all walked up to the Cancun Club together and met with Morris. They all got into the club for free. There clearly was a connection between the four men. Detective Holmes testified that Singh had been photographed previously with Duncan, wearing gang attire and making a gang sign. He had a known gang moniker. Singh, along with Tolbert and Duncan, were all Project Crips gang members and they walked into the Cancun Club together. Once inside, Singh was seen in a video next to Duncan, who was flashing Project Crips gang signs.
Two of the subjects exited the Cancun Club at approximately 2:00 a.m.; the third subject followed in approximately three minutes
Tolbert and Singh walked out of the Cancun Club together and Duncan followed minutes later. They then confronted Decatur. Felix identified Singh from the surveillance video. While Singh complains that Felix only identified him because someone else told her that Singh was in the video, the jury was well-aware of this fact. Further, Schexnayder also identified Singh as being present. Singh was with Tolbert and Duncan when they confronted Decatur.
Tolbert specifically stated that he had a "burner" for Decatur in Singh's presence. Further, there was mention of Project Crips both during the confrontation and during the shooting. They also asked about the music video, which Detective Holmes claimed would anger gang members who claimed Riverside as their territory. There is no dispute that Singh was a member of Project Crips. The evidence establishes that Singh knew Tolbert had a gun and that Tolbert, in Singh's presence, was claiming Project Crips. All three of the men walked away from the confrontation but wanted Decatur to go to the back of the parking lot with them to either fight him or shoot him. Singh was present with his fellow Project Crips gang members during this confrontation.
Moore indicated that she observed Duncan, Tolbert and Singh all walk together to the back of the club. A short time later, Tolbert's car was seen approaching Decatur's Jeep and then at least 13 rounds were fired from a gun from the passenger's side of Tolbert's car. Officer Brownfield, who was sitting in his police car facing where the shooting occurred, was certain there was a driver and a passenger in the white vehicle he saw immediately after the shooting. He could not see clearly how many occupants were in the backseat. There was no contrary testimony that Singh was seen at the Cancun Club separately from Duncan and Tolbert before or after the shooting. The jury could reasonably conclude that Singh was in Tolbert's vehicle at the time of the shooting. Moreover, they could reasonably conclude, based on the calling out of Project Crips, that the crime was committed on behalf of the gang.
Finally, Graham had told police that Singh was with Duncan and Tolbert at Borders's house. Borders was a known Project Crips member. Graham described the four of them all sitting together at a kitchen table. He indicated that "they" were all discussing the shooting. Even if Singh did not make any comments, they were talking openly about the shooting in front of Singh. Graham was certain they said there were four of them in the car at the time of the shooting.
The evidence established that Singh was with Tolbert and Duncan, his fellow gang members, when they confronted Decatur outside the Cancun Club. They were seen walking away together. Singh was aware that one of them had a gun and that Tolbert had claimed Project Crips. Shortly thereafter Tolbert's Lincoln drove up next to Decatur and 13 to 15 rounds were fired into his Jeep while someone yelled Project Crips. The jury could reasonably conclude that Singh aided and promoted the shooting of Decatur based both on the confrontation with the victim with his fellow gang members prior to the shooting and the testimony of Detective Holmes that such crime would increase the status and reputation of Project Crips and those involved. Substantial circumstantial evidence was presented that Singh aided and abetted the crimes in counts 1 though 4 to support his convictions.
4. SINGH—PERSONAL DELIBERATION FOR ATTEMPTED MURDER
Singh contends this court must reverse his convictions for attempted premediated, deliberate and willful murder because the trial court's instructions did not require the jury to find that he personally premeditated the attempted murders. Since we have reversed the attempted murder convictions, we need not address this issue.
5. SINGH—INSTRUCTIONAL ERROR—CALCRIM NO. 372
Singh contends the trial court erred by instructing the jury with CALCRIM No. 372 because identity of him as a perpetrator who was present was a contested or main issue in the case. The instruction impermissibly allowed the jury to conclude he was present at the time of the shooting. Here, the trial court instructed the jury "If the defendant fled immediately after the crime was committed, that conduct may show that he was aware of his guilt. If you conclude that the defendant fled, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled cannot prove guilt by itself."
Initially, the People contend that Singh has waived the issue by failing to object to CALCRIM No. 372 in the trial court. However, the California Supreme Court has found that challenges to the flight instruction on appeal are cognizable even in the absence of a contemporaneous objection in the lower court. (People v. Rogers (2013) 57 Cal.4th 296, 332, fn. 5.)
The instruction was proper even though identity was at issue. The Supreme Court has repeatedly rejected the argument that flight instructions compel a finding of guilt or otherwise impermissibly lower the prosecution's burden of proof. (See, e.g., People v. Johnson (2015) 61 Cal.4th 734, 774 [finding flight instruction does not lessen the prosecution's burden of proof even if the identity of the perpetrator is at issue]; People v. Loker (2008) 44 Cal.4th 691, 705-706.) When identity of the perpetrator is at issue, it is proper to instruct on flight. "If there is evidence identifying the person who fled as the defendant, and if such evidence 'is relied upon as tending to show guilt,' then it is proper to instruct on flight. [Citation.] 'The jury must know that it is entitled to infer consciousness of guilt from flight and that flight, alone, is not sufficient to establish guilt. [Citation.] The jury's need to know these things does not change just because identity is also an issue. Instead, such a case [only] requires the jury to proceed logically by deciding first whether the [person who fled] was the defendant and then, if the answer is affirmative, how much weight to accord to flight in resolving the other issues bearing on guilt. The jury needs the instruction for the second step.' " (People v. Mason (1991) 52 Cal.3d 909, 943.) Here, the jury was merely instructed that it first had to find that defendant was present, and then it considered whether he fled the shooting if he was present, and that it could consider such flight as showing consciousness of guilt. The flight instruction was appropriate in this case.
Singh relies upon People v. Anjell (1979) 100 Cal.App.3d 189, 199 but that case was overruled by Mason, supra.
6. SINGH—ADMISSION OF STATEMENTS BY DUNCAN AND TOLBERT AS ADOPTIVE ADMISSIONS
Singh contends the trial court erred by introducing the testimony of Detective Flynn concerning an interview with Graham, which allowed the admission of statements made by Duncan and Tolbert as adoptive admissions against Singh.
a. Additional Factual History
Before trial, the trial court addressed the motions in limine. Singh's counsel objected, on grounds of Evidence Code section 352, to Graham's statements in which Tolbert and Duncan discussed the shooting. The People contended the statements were admissible against all defendants under Evidence Code sections 1220 and 1230. These were declarations against interest and adoptive admissions.
Singh's counsel argued that Singh made no statements during the discussion; only Duncan and Tolbert made statements. The trial court indicated it was not clear who was speaking because Graham said "they" numerous times. Further, Singh's counsel contended that Graham was not present but rather Borders told him what was said by defendants. The People clarified that Graham was present but did not hear everything that was said; Borders told him some of the things that were said. The prosecutor intended to introduce the statement if Graham testified differently at trial. The trial court postponed a determination until the specific statements were to be introduced.
At trial, Graham denied he said anything about the shooting to the police. Accordingly, the prosecutor intended to play Graham's statement to the jury as an inconsistent statement both based on the testimony of Borders and Graham. The statements were admissible as statements against interest against defendants. Singh's counsel again objected claiming Singh never made any statements. The People responded that they were adoptive admissions. The trial court agreed that the statements by the other defendants implicated Singh. He was present and made no attempt to deny the statements. The trial court found they were adoptive admissions as to Singh. Singh's counsel objected that anyone could have been listening to the statements and been charged. The trial court disagreed based on Singh's involvement in the case.
The trial court, just prior to the playing of Graham's interview, again found that the statements were adoptive admissions against Singh. The statements also came in as inconsistent statements. The statements were reliable and trustworthy because they were made between friends with no anticipation of litigation. Singh's attorney argued that Singh said nothing during the discussion. Further, the evidence did not establish that he even heard what the other defendants were saying. Further, he was not implicated by the statements. The prosecutor argued that Singh was sitting at a small table with the other defendants when the statements were made. The term "they" was used throughout the conversation. The trial court denied the objections and Graham's statements to the police were admitted. Graham's statement to the police has been set forth, ante.
The jury was instructed as to the adoptive admission. It was advised that "If you conclude that someone made a statement outside of court that accused the defendant of the crime or tended to connect the defendant with the commission of the crime and the defendant did not deny it, you must decide whether each of the following is true: [¶] 1. The statement was made to the defendant or made in his presence; [¶] 2. The defendant heard and understood the statement; [¶] 3. The defendant would, under all the circumstances, naturally have denied the statement if he thought it was not true; [¶] AND [¶] 4. The defendant could have denied it but did not. [¶] If you decide that all of these requirements have been met, you may conclude that the defendant admitted the statement was true. [¶] If you decide that any of these requirements has not been met, you must not consider either the statement or the defendant's response for any purpose."
b. Analysis
Evidence Code 1221 provides that "Evidence of a statement offered against a party is not made inadmissible by the hearsay rule if the statement is one of which the party, with knowledge of the content thereof, has by words or other conduct manifested his adoption or his belief in its truth." "If a person is accused of having committed a crime, under circumstances which fairly afford him an opportunity to hear, understand, and to reply, and which do not lend themselves to an inference that he was relying on the right of silence guaranteed by the Fifth Amendment to the United States Constitution, and he fails to speak, or he makes an evasive or equivocal reply, both the accusatory statement and the fact of silence or equivocation may be offered as an implied or adoptive admission of guilt." (People v. Preston (1973) 9 Cal.3d 308, 313-314; see also People v. Riel (2000) 22 Cal.4th 1153, 1189.)
"To warrant admissibility, it is sufficient that the evidence supports a reasonable inference that an accusatory statement was made under circumstances affording a fair opportunity to deny the accusation; whether defendant's conduct actually constituted an adoptive admission becomes a question for the jury to decide." (People v. Edelbacher (1989) 47 Cal.3d 983, 1011.) A direct accusation is not essential, and silence may be taken as an adoption of statements made in a defendant's presence. (People v. Riel, supra, 22 Cal.4th at p. 1189.) "Whether the statement constitutes an adoptive admission is 'determined upon the facts and circumstances therein presented.' " (People v. Roberts (2011) 195 Cal.App.4th 1106, 1121.)
" '[A] trial court has broad discretion to determine whether a party has established the foundational requirements for a hearsay exception [citation] and "[a] ruling on the admissibility of evidence implies whatever finding of fact is prerequisite thereto. . . ." [Citation.] We review the trial court's conclusions regarding foundational facts for substantial evidence.' " (People v. Chism (2014) 58 Cal.4th 1266, 1297.)
Here, there were foundational facts properly found by the trial court, which supported admitting the statements made in Singh's presence. Singh was with Duncan and Tolbert at the Cancun Club when they confronted Decatur. During that confrontation, the Project Crips name was said, and Decatur was asked about the music video. It was also clear that one of the defendants had a gun. Shortly after this confrontation, Tolbert's car was seen pulling up to Decatur's Jeep and shots were fired from Tolbert's car into the Jeep. As we have found, substantial evidence supported that Singh aided and abetted the shooting of Decatur and was present the night of the shooting.
The next day, Graham was present when Duncan, Singh, Tolbert, Damar and Borders were all talking about the shooting that occurred the prior night. They mentioned a rap song involving members of an Eastside gang, a .9-millimeter gun and that a person had died. At this time, Graham indicated that Singh was with them and they were all sitting around the table. Graham was certain they said there were four people in the car at the time of the shooting, despite not specifically stating that Singh was in the car. Graham believed that Singh was with them because Duncan and Tolbert were openly talking about the shooting in front of Singh. Based on these discussions, if Singh was not involved, he had a fair opportunity to advise Borders he was not involved. He said nothing while in the presence of Duncan and Tolbert, with whom he had been with the prior night. The trial court did not abuse its discretion by allowing the statements in and letting the jury decide if they were adoptive admissions by Singh.
Even if the trial court erred by admitting the statements, any conceivable error was harmless. "Ordinarily, the erroneous admission of evidence is reviewed for prejudice under the standard described in People v. Watson (1956) 46 Cal.2d 818, 836 [], which requires reversal only if the defense shows it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error. [Citation.] However, when the error involves a defendant's federal constitutional rights, such as a violation of the privilege against self-incrimination, the error is reviewed for prejudice under the standard described in Chapman v. California (1967) 386 U.S. 18, 24." (People v. Roberts (2017) 13 Cal.App.5th 565, 576-577.) Employing either standard, the error was harmless in this case.
Substantial other evidence was presented, which supported Singh was actively involved in the shooting with his fellow gang members. As previously found, the evidence was substantial that Singh was present during the altercation with Decatur, that he was a Project Crips member, and that he was aware that one of his fellow gang members had a gun. The evidence also supported that he was in the car at the time of the shooting. Moreover, the evidence that Singh was with Duncan and Tolbert the next day was properly admitted. Based on the foregoing, the admission of statements made by Duncan and Tolbert was harmless.
C. SENTENCING ISSUES
1. SENATE BILL 620
Duncan, Singh and Tolbert all claim they are entitled to remand for resentencing for the trial court to exercise its discretion to strike the gun enhancements found true against defendants pursuant to section 12022.53.
At the time of sentencing, Duncan was sentenced to 25 years to life on count 1 for the gun enhancement found true within the meaning of section 12022.53, subdivision (d). In addition, on counts 2 and 3, he was sentenced on each to 20 years to life pursuant to section 12022.53, subdivisions (c). Tolbert and Singh both were sentenced on count 1 to 25-years-to-life sentences on the gun enhancement found true pursuant to section 12022.53, subdivision (d), and 20-years-to-life sentences on counts 2 and 3 for the gun enhancements found true pursuant to section 12022.53, subdivision (b).
Former section 12022.53, subdivision (h), required that a true finding under section 12022.53, subdivision (d), mandated a 25-years-to-life sentence. (People v. Woods (2018) 19 Cal.App.5th 1080, 1082.) This is equally true for the 20-years-to-life sentence on a true finding under section 12022.53, subdivisions (b), and (c). SB 620 modified this section and authorized trial courts to strike section 12022.53 enhancements for purposes of sentencing. The modification took effect on January 1, 2018, after the sentencing in this case. (Stats. 2017, ch. 682, § 2.) Section 12022.53, subdivision (h), now states, "[t]he court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section."
As conceded by the People, the amendment is retroactive. (See People v. Robbins (2018) 19 Cal.App.5th 660, 678-679; People v. Woods, supra, 19 Cal.App.5th at p. 1090.) The People have conceded that remand is required. We will remand the matter for the trial court to consider whether to strike or dismiss the section 12022.53 enhancements imposed against Singh, Tolbert and Duncan on count 1 based on any relevant facts.
2. IMPOSITION OF SENTENCE ON PRIOR CONVICTIONS FOUND TRUE BOTH UNDER SECTION 667 .5, SUBDIVISION (B), AND 667, SUBDIVISION (A)
Singh contends the trial court erred when it imposed a one-year sentence on his prior conviction found true pursuant to section 667.5, subdivision (b), because it was the same prior conviction for which a five-year sentence was imposed pursuant to section 667, subdivision (a). Morris makes the same claim—that the trial court erred by imposing sentence on the same prior found true under both section 667, subdivision (a), and 667.5, subdivision (b). The People concede the error.
Singh was charged in the information, and the trial court found true, that he suffered a prior conviction of robbery in case No. RIF128739 pursuant to both sections 667, subdivision (a), and 667.5, subdivision (b). The trial court imposed sentence on both prior convictions. As for Morris, he was charged in the information and he admitted suffering one prior conviction pursuant to sections 667, subdivision (a)(1), section 667.5, subdivision (b), and as a strike (§ 1170.12). He was sentenced on all of them.
"[W]hen multiple statutory enhancement provisions are available for the same prior offense, one of which is a section 667 enhancement, the greatest enhancement, but only that one, will apply." (People v. Jones (1993) 5 Cal.4th 1142, 1150; see also People v. Anderson (2018) 5 Cal.5th 372, 426.) The appropriate remedy is to strike the one-year enhancement of defendants' sentences for the prior offenses under section 667.5, subdivision (b). (Jones, at p. 1153.) As such, we remand this matter to the trial court with directions to strike the one-year enhancement for the prison prior for Morris found true pursuant to section 667.5, subdivision (b), and to strike the one-year sentence for the prior robbery prison sentence found true pursuant to section 667.5, subdivision (b), for Singh.
We note that Singh and Morris both argue, post, that they are entitled to be resentenced pursuant to SB 1393, which gives the trial court discretion to strike serious prior felony convictions found true pursuant to section 667, subdivision (a). If upon remand the trial court strikes the section 667, subdivision (a), priors found true against Singh and Morris, it should impose the appropriate section 667.5, subdivision (b), prior.
Singh agrees the section 667.5, subdivision (b), sentence may be imposed if the section 667, subdivision (a), prior is stricken.
3. GANG ENHANCEMENT
Singh contends the gang enhancements found true pursuant to section 186.22, subdivision (b)(1)(C), on counts 1, 2 and 3, which were stayed by the trial court, must be stricken. We have reversed the attempted murder convictions in counts 2 and 3 and therefore this argument only applies to count 1, the premeditated and deliberate murder of Decatur. Here, the trial court imposed indeterminate terms on the firearm enhancements on count 1 pursuant to section 12022.53, subdivision (e)(1), because the shooting was gang-related. The People concede the gang enhancements must be stricken.
Singh was found not to be the shooter. However, it was found true as to Singh on counts 1, 2 and 3 that a principal used a firearm and that it was a gang-related crime pursuant to section 12022.53, subdivision (e)(1). In addition, it was found true that the crimes were committed for the benefit of the gang (§ 186.22, subd. (b)(1)(C)). The sentences for counts 1, 2 and 3 for the firearm enhancements were imposed as follows: count 1—25 years to life; count 2—20 years to life; and count 3—20 years to life. The trial court stayed the 10-year gang enhancements on counts 1, 2 and 3.
Section 12022.53, subdivision (e)(1), provides "The enhancements provided in this section shall apply to any person who is a principal in the commission of [a gang related] offense if both of the following are pled and proved: [¶] (A) The person violated [the gang crime provisions of] subdivision (b) of Section 186.22. [¶] (B) Any principal in the offense committed any act specified in subdivision (b), (c), or (d) [defining various uses of a gun in a crime]." Subdivision (e)(2), provides, "An enhancement for participation in a criminal street gang . . . shall not be imposed on a person in addition to an enhancement imposed pursuant to [the gun enhancement], unless the person personally used or personally discharged a firearm in the commission of the offense."
"In short, 'a defendant who personally uses or discharges a firearm in the commission of a gang-related offense is subject to both the increased punishment provided for in section 186.22 and the increased punishment provided for in section 12022.53. In contrast, when another principal in the offense uses or discharges a firearm but the defendant does not, there is no imposition of an enhancement for participation in a criminal street gang . . . in addition to an "enhancement imposed pursuant to" section 12022.53.' " (People v. Gonzalez (2010) 180 Cal.App.4th 1420, 1425, italics omitted.) The trial court cannot impose punishment under "both section 186.22 and section 12022.53." (People v. Brookfield (2009) 47 Cal.4th 583, 596.) The trial court must choose to impose sentence on the enhancement which will result in the greater sentence. (Ibid.)
Here, the trial court properly imposed the gun enhancement on count 1 (we have reversed counts 2 and 3) because it carried a longer sentence than the section 186.22, subdivision (b)(1)(C), enhancement. However, the trial court should have struck the section 186.22, subdivision (b)(1)(C), enhancement on count 1 rather than imposing and staying punishment.
Although not raised by Tolbert, this argument equally applies to his sentence. The gang enhancements under section 186.22, subdivision (b)(1)(C), were imposed and stayed based on the imposition of the section 12022.53 enhancements. An unauthorized sentence can be corrected at any time. (In re Renfrow (2008) 164 Cal.App.4th 1251, 1256.) As such, we will remand for resentencing for the trial court to strike the gang enhancements (§ 186.22, subd. (b)(1)(C)) on count 1 for both Tolbert and Singh.
We note that this court has ordered remand to the trial court for it to exercise its discretion to impose or strike the section 12022.53 firearm enhancements for Singh, Tolbert and Duncan. If the trial court strikes the firearm enhancements, it should appropriately sentence Singh and Tolbert on the section 186.22, subdivision (b)(1)(C), enhancements on count 1.
4. DENIAL OF MOTION FOR NEW TRIAL AND IMPOSITION OF SENTENCE
Duncan insists the trial court erred in denying his motion for new trial and in imposing his sentence because it confused his involvement in the crimes with Tolbert. This incorrect view that Duncan was the leader of the group during the confrontation with Decatur caused the trial court to deny the motion for new trial and influenced the imposition of sentence.
a. Additional Factual History
Duncan was appointed new counsel to prepare a motion for new trial. Duncan's new counsel filed a motion for new trial on September 8, 2016. Counsel filed the motion on the grounds Duncan was denied his opportunity to testify and he received ineffective representation.
The motion did not detail the facts of the case. It was argued that Duncan's counsel should have called him to testify. Further, Duncan's counsel should have called witnesses. No further argument was made as to what witnesses should have been called or what Duncan would have stated in his testimony. Duncan presented a declaration that he advised his counsel he wanted to testify.
The new trial motion was heard on March 22, 2017. Duncan testified. He indicated he wanted to testify but his attorney, Julian Ducre, told him he was too aggressive and should not testify. Ducre testified that defendant had told him before and during the trial that he did not want to testify. Duncan never changed his mind during trial. In ruling on the motion for new trial, the court found there was not sufficient evidence presented to the court to determine that defendant asserted his right to testify.
The trial court then addressed if Duncan had testified whether the outcome of the proceedings would have been different. It found there was no evidence presented in the motion for new trial as to what evidence would have been presented. The trial court then addressed the sufficiency of the evidence. The trial court stated that Duncan was identified by Felix and Schexnayder. The trial court then stated, "The evidence was clear that the shorter one was the primary aggressor of the three defendants who confronted the victim in the parking lot." Duncan advised Decatur and the others that he had a gun. The trial court also referred to Duncan being an active gang member and to the video of him threatening other gang members. The trial court concluded, "[T]here's more than substantial evidence to support a finding of guilty as to [Duncan], when you have two percipient witnesses that place him at the scene and identify him as the initial aggressor, the one who challenged the victim, the one who threatened the victim with a gun."
Thereafter, Duncan was sentenced by the trial court. The trial court noted in aggravation was the fact that Duncan armed himself with a gun when he came to the Cancun Club. It found it was a very violent crime in which Duncan shot "at least nine rounds, into a motor vehicle occupied by three human beings." Duncan was on probation and parole at the time of the offense. The trial court did not reference Duncan being the aggressor. It focused on the fact that Duncan was the shooter.
b. Analysis
Duncan insists that the trial court's erroneous impression that he was the aggressor at the Cancun Club, as opposed to Tolbert, rendered its discretionary sentencing and denial of his motion for new trial erroneous.
The People contend that Duncan has waived this claim by failing to bring the misstatement to the trial court's attention at the time of the denial of the motion for new trial. Duncan insists the claim should be reviewed because his new counsel appointed to file the motion for new trial was unaware of all the facts in the case and the prosecutor had a duty to inform the trial court of its mistake. We will review the claim.
Initially, Duncan has failed to meet his burden of showing the trial court abused its discretion during sentencing. "The burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review." (People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 831.) Nothing in the records supports that the trial court relied on Duncan being the leader of the group when he was sentenced. In fact, it relied upon Duncan being the shooter, and that he relentlessly shot at least nine rounds into the Jeep. Further, the fact that the trial court imposed a higher restitution fine against Duncan than it gave to Singh and Tolbert is not indicative of the trial court relying upon Duncan being the leader of the group: the record supports the additional restitution was based on Duncan being the shooter. Duncan has failed to show that the trial court abused its discretion in sentencing him, based on misstatements made in denying his motion for new trial.
Moreover, the fact that the trial court incorrectly identified Duncan as the leader in denying the motion for new trial was not prejudicial. Duncan filed the motion for new trial on the ground of ineffective assistance of counsel; specifically, he wanted to testify at trial and he wanted his counsel to call witnesses on his behalf.
Ineffective assistance of counsel is not one of the nine grounds for ordering a new trial in section 1181. "It is undeniable that trial judges are particularly well suited to observe courtroom performance and to rule on the adequacy of counsel in criminal cases tried before them. [Citation.] Thus, in appropriate circumstances justice will be expedited by avoiding appellate review, or habeas corpus proceedings, in favor of presenting the issue of counsel's effectiveness to the trial court as the basis of a motion for new trial. If the court is able to determine the effectiveness issue on such motion, it should do so." (People v. Fosselman (1983) 33 Cal.3d 572, 582-583.) Initially, since the motion for new trial was based on ineffective assistance of counsel, and involved conduct outside the courtroom, it is arguable it was not appropriate to be reviewed in a motion for new trial.
Nonetheless, the trial court denied the motion finding that it did not believe defendant's testimony that he told Ducre he wanted to testify. The trial court also noted there was no evidence as to what Duncan would have testified and what other witnesses should have been called. It concluded, "[T]here's been no showing that a different outcome would have occurred at this point, because we don't have any offer of what contrary evidence would have been presented."
Despite finding Duncan not credible, and that no evidence had been presented as to what would have come forth had he testified, the trial court went further and addressed the sufficiency of the evidence in the case. It was at this time the trial court characterized Duncan as the leader. The trial court did not abuse its discretion by finding that Duncan failed to meet his burden of showing that his counsel's actions were ineffective because Duncan failed to prove he did ask Ducre if he could testify, and based on the failure to present any evidence as to what was improperly excluded from the trial. That the trial court continued to address prejudice does not affect that decision. The trial court did not abuse its discretion in denying Duncan's motion for new trial.
5. SB 1393
Singh and Morris both provide in supplemental briefing that they are entitled to be resentenced pursuant to SB 1393. They insist the trial court should be given the opportunity to exercise its discretion to strike their section 667, subdivision (a), enhancements.
Effective January 1, 2019, sections 667, subdivision (a), and 1385, subdivision (b), allow a trial court to exercise its discretion to strike or dismiss a prior serious felony conviction for sentencing purposes. (People v. Garcia (2018) 28 Cal.App.5th 961, 971.) Under the prior version of section 667, subdivision (a), the court was required to impose a five-year consecutive term for prior serious felony convictions and had no discretion to strike any prior conviction of a serious felony for purposes of enhancement of a sentence. (Garcia, at p. 971.) We agree that the amendment applies to Morris as his case is not final. (Id. at pp. 972-973 [SB 1393 applies retroactively to all cases not yet final on the effective date].)
The People concede SB 1393 applies to this case and that Morris is entitled to resentencing. The People argue that remand for resentencing is unnecessary for Singh because the trial court clearly indicated that it would not have dismissed the serious felony allegation.
We need not address this claim as we have ordered remand for the trial court to exercise its discretion to strike the section 12022.53 enhancements as to Singh. At that time, the trial court can properly consider its new discretion pursuant to SB 1393. Accordingly, we will vacate the sentences of Morris and Singh and remand this matter to allow the trial court to exercise its discretion to strike or impose the prior serious felony enhancements.
6. ABSTRACT OF JUDGMENT
Tolbert, Singh and Duncan all contend that their abstracts of judgment must be corrected due to clerical error. Since we are vacating their sentences and remanding for resentencing, there is no need to correct the abstracts of judgment as new ones will be prepared after sentencing.
DISPOSITION
The attempted murder convictions of Tolbert, Singh and Duncan in counts 2 and 3 are reversed. The sentences of Morris, Tolbert, Singh and Duncan are reversed; upon remand, the trial court is to exercise its discretion to strike or impose the firearm enhancements pursuant to section 12022.53, subdivision (h), for Singh, Duncan and Tolbert. Further, the trial court should strike the gang enhancements (§ 186.22, subd. (b)(1)(C)) for Singh and Tolbert. In addition, it should exercise its discretion pursuant to SB 1393 as to Morris and Singh to strike the section 667, subdivision (a), priors. If the trial court chooses to impose the section 667, subdivision (a), priors, it should strike the section 667.5, subdivision (b), priors for Morris and Singh, which were based on the same prior conviction. Following resentencing, the trial court is directed to prepare new abstracts of judgment and forward them to the Department of Corrections and Rehabilitation. In all other respects, the judgments are affirmed..
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
Acting P. J. We concur: CODRINGTON
J. SLOUGH
J.