Opinion
D071097
04-10-2017
THE PEOPLE, Plaintiff and Respondent, v. DEONTA WALKER et al., Defendants and Appellants.
Mark David Greenberg for Defendant and Appellant Deonta Walker. Richard A. Levy, under appointment by the Court of Appeal, for Defendant and Appellant Larry Fraudie. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Eric A. Swenson, Lynne G. McGinnis and Kristine A. Gutierrez, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FVI1200836) APPEALS from the judgments of conviction of the Superior Court of San Bernardino County, John M. Tomberlin, Judge. Reversed in part, modified in part and affirmed in part. Mark David Greenberg for Defendant and Appellant Deonta Walker. Richard A. Levy, under appointment by the Court of Appeal, for Defendant and Appellant Larry Fraudie. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Eric A. Swenson, Lynne G. McGinnis and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent.
Defendants and Appellants Larry Fradiue (Fradiue) and Deonta Walker (Walker) (sometimes collectively, defendants) were charged along with Randy Rollins (Rollins) and Raymond Fradiue (R. Fradiue) by amended information with special circumstances murder (Pen. Code, §§ 187, subd. (a), 190.2, subds. (a)(17)(A) & (a)(22); count 1); second degree robbery (§ 211; count 2); and active gang participation (§ 186.22, subd. (a); count 3). The amended information also alleged gang (§ 186.22, subd. (b)(1)) and firearm (§ 12022.53, subds. (b), (c), (d) & (e)(1)) enhancements in counts 1 and 2 and separately alleged Fradiue personally and intentionally discharged, or personally used, a firearm in connection with each of the firearm enhancements.
Neither Rollins nor R. Fradiue are parties in this appeal.
All further statutory references are to the Penal Code.
The trial court severed the trial of Fradiue and Rollins from the trial of Walker and R. Fradiue. Although Fradiue and Rollins were tried together, they had separate juries. Fradiue was prosecuted on the theory he was the actual killer of victim Inho L. Fradiue's jury returned guilty verdicts on all counts and found true the special circumstances and enhancements. The court sentenced Fradiue to 30 years eight months to life in state prison followed by a consecutive term of life without the possibility of parole.
California Rules of Court, rule 8.90(b) requires appellate courts to "consider referring to" certain individuals "by first name and last initial" to protect those individuals' privacy. Accordingly, we refer to the victim in this case by his first name and last initial, and thereafter by first name only. Our use of first names is not intended as a sign of disrespect.
Rollins's jury returned guilty verdicts on all counts, found true the gang-murder (§ 190.2, subd. (a)(22)) but not true the robbery/felony murder (§ 190.2, subd. (a)(17)(A)) special circumstance, and found true all enhancements.
After the trial of Fradiue and Rollins, Walker and R. Fradiue proceeded to trial also with separate juries. Shortly before their trial concluded, the court granted R. Fradiue's oral mistrial motion based on potential exculpatory evidence that was then being investigated by the People. Walker's jury subsequently returned guilty verdicts on all counts and found true the special circumstances and enhancements. The court also sentenced Walker to a term of 30 years eight months to life in state prison followed by a consecutive term of life without the possibility of parole.
As a result of the court's granting of R. Fradiue's mistrial motion, defendant Fradiue on March 3, 2015, filed an unopposed request for judicial notice, in which he attached (1) the minutes and (2) the register of actions pertaining to the dismissal of R. Fradiue's case. Previously, Division Two of this court reserved its ruling on this request. We now grant the March 3 request for judicial notice, deem the two attachments to be part of the appellate record and note we have considered this evidence in connection with the defendants' claims on appeal.
R. Fradiue's jury was dismissed after the court granted his mistrial motion.
On appeal, Fradiue contends the court prejudicially erred as to him in separately instructing the Rollins jury with respect to the intent required to impose the gang-murder special circumstance. He further contends the court prejudicially erred in failing to suppress his statements to police during a stationhouse interview because such statements allegedly were made in violation of his Sixth Amendment right to counsel, were coerced and were made after he unequivocally invoked his right to silence.
When this case was transferred from Division Two to Division One of this court, the appeals of Fradiue and Walker had already been consolidated and the case fully briefed. We note that Walker in his brief has joined in various contentions asserted by Fradiue and, thus, has tacitly adopted those portions of the record applicable to Fradiue. However, to the extent Walker makes any contentions that are separate from those asserted by Fradiue, we of course will rely only on that portion of the record that applies to Walker, inasmuch as he and Fradiue were tried separately.
Fradiue also contends that the court erred in connection with its handling of potential juror misconduct; that the testimony of the People's gang expert was insufficient to establish the "primary activities" of the Santana Blocc Crips street gang (SBC) of which Fradiue was a member; that the court erred in including a nonqualifying crime as a potential "primary activity" of SBC; and that his sentence on counts 2 and 3 should have been stayed under section 654, subdivision (a).
In addition to joining in certain contentions made by Fradiue, Walker on appeal separately contends there was insufficient evidence in the record to support the gang enhancement true finding as to him.
As we explain, as to Fradiue we conclude the court should have stayed under section 654, subdivision (a) his sentence on counts 2 (robbery) and 3 (active gang participation). In all other respects, the judgment of conviction of Fradiue is affirmed.
As to Walker, we conclude that the gang-murder special circumstance true finding made under section 190.2, subdivision (a)(22) must be reversed and that his sentence on counts 2 and 3 likewise should have been stayed under section 654, subdivision (a). In all other respects, the judgment of conviction of Walker is affirmed.
SUMMARY OF FACTS
We view the evidence in the light most favorable to the judgments of conviction, to the extent there is a conflict in the evidence. (See People v. Osband (1996) 13 Cal.4th 622, 690.) Certain portions of the factual and procedural history related to the contentions of alleged error raised by Fradiue and/or Walker are discussed post, in connection with those contentions.
Fradiue, Walker and Rollins were all members of SBC, one of the oldest and largest street gangs in Compton/Los Angeles County. SBC also has members in Fontana, Victorville, where the instant crime occurred, and as far away as New York and New Jersey. Fradiue went by the moniker "Little Sneaks" and Walker by the moniker "Bones."
In the afternoon of March 26, 2012, Fradiue, Walker, Rollins and one or more unidentified African American males committed a coordinated "smash-and-grab" robbery of a jewelry store located in an indoor swap meet in Victorville. The men drove to the swap meet in a white SUV. While armed, Fradiue along with an unidentified male entered the swap meet building through one entrance while Walker and Rollins, each holding a hammer, entered through a separate entrance.
Jewelry store employee Song Suk O'Conner testified she was behind the counter helping a customer when she heard a "really loud" smashing sound. She looked over and saw a man holding a hammer smashing some of the display cases of the jewelry store. O'Conner went to the ground and crawled away. Shortly thereafter she heard gunshots.
Witness Maribel Leggett testified she was working inside the swap meet on the day of the shooting. At some point in the afternoon, she heard the sound of glass breaking. On investigation, she saw victim Inho, who also worked at the swap meet, swinging what she described as part of a "jewelry box" in front of his body. As she observed Inho going forward, she saw a man in a "black hoodie" near one of the entrance doors pointing a gun at Inho. As Leggett turned to run, she heard five or six gun shots. The first three shots she described as coming one after another. After a brief pause, she heard the other shots.
Witness Luz Cuevas testified she also was working inside the swap meet on the day of the shooting. She had just come back from a break when she saw an African American male wearing a hoodie using a hammer to smash the glass display cases of the jewelry store. Cuevas next saw the man grab the jewelry from the display case. Cuevas heard O'Conner scream and saw her panic. Cuevas's mother, who worked at the same store as Cuevas, grabbed O'Conner and pulled her to safety. All three then hid behind a "floral display case." Cuevas called 911.
While on the phone with the 911 operator, Cuevas testified she heard about five gun shots. Shortly thereafter and while still on the phone with the 911 operator, Cuevas went outside and saw Inho lying on the ground. Cuevas described Inho as then looking "extremely pale."
Witness Samantha Tarin testified that on the day of the shooting, she was in the parking lot of the swap meet with her mother and newborn son. As they were getting in their car to leave, Tarin saw an African American male wearing dark clothing standing next to a white SUV, about a car's-length away from Tarin's car. The man was holding a gun. Tarin saw another African American male standing on the other side of the SUV and saw the SUV driver, whom she also described as African American.
According to Tarin, the male holding the gun acted "kind of like confused," as if he "didn't know what was going on" after one of the other men ostensibly had gone back inside the swap meet. It appeared to Tarin the man holding the gun did not know whether he should get in the SUV or go back inside. Tarin next saw the man with the gun go back into the swap meet.
Shortly thereafter, Tarin saw one or both males come running back outside with an Asian man giving chase. The Asian man was yelling, "Hey, hey, stop." Tarin next saw the Asian man and another man struggling over a blanket before the man got into the SUV. Shortly thereafter, Tarin heard gunshots, saw the SUV take off and observed the Asian man lying on the ground.
Witness Ernesto Alvarez testified he owned a business inside the swap meet, adjacent to where victim Inho worked. Shortly before the shooting, Alvarez was outside one of the building entrances smoking a cigarette. As he smoked, he saw a "cream-colored" SUV pull up and an African American male wearing a "hooded sweater" exit the SUV. According to Alvarez, the man appeared "really nervous."
After the man went inside the swap meet, Alvarez saw the SUV pull forward and stop at the other swap meet entrance. About two minutes later, Alvarez saw the sliding glass doors near where he was standing forcefully opened by the same man who had just gone inside. The man was now holding a gun. The man next pointed the gun in Alvarez's direction and in the direction of two other people who also were standing outside.
Alvarez in response ran to the other entrance of the swap meet to check on his mother, who was inside working. Alvarez found his mother lying on the floor. Next, he saw at least two individuals running back and forth in the hallway of the swap meet. After Alvarez heard four or five "loud" sounds, he went outside and found Inho lying on the ground. Alvarez saw Inho take what Alvarez described as "[Inho's] last breath."
San Bernardino County Sheriff Deputy David Carpenter testified that he responded to the swap meet shooting; that he found Inho unresponsive and lying face up; and that he noticed Inho had gunshot wounds to his upper chest and torso. Deputy Carpenter saw jewelry lying on the ground near Inho and near the swap meet entrance.
Sergeant Daniel Rodriguez of the San Bernardino County Sheriff's Department testified he participated in the investigation of the Inho homicide. On the night of the shooting, Sergeant Rodriguez responded to a location in Compton where a white SUV was found. On investigation, Sergeant Rodriguez found the interior of the SUV had been set ablaze.
Inside the SUV behind the driver's seat, Sergeant Rodriguez found a "ball-peen hammer" that was identical to a broken hammer police had recovered inside the swap meet. Both hammers included on their handle the marking, "Genuine American Hickory." On further investigation, police also found a white price tag in the backseat of the SUV that matched the tags attached to jewelry from the swap meet jewelry store.
A latent palm print taken from the south glass door to the swap meet matched the palm print of Fradiue. A latent fingerprint taken from the broken hammer handle left at the robbery scene matched Walker's "number 10 finger" (i.e., left pinky).
The day after the shooting, police questioned Antonio Hilt, the registered owner of the white SUV. Hilt grew up in Compton and when younger, "hung out" with members of the Mona Park Crip gang. Hilt knew R. Fradiue, who went by the moniker "Big Boy," because R. Fradiue's family lived nearby.
During the interview, Hilt told police he and his cousin had been watching the television news earlier that day when they saw a report about the swap meet shooting and saw what appeared to be the SUV Hilt previously had owned. Hilt told police that about a week earlier, two individuals from his neighborhood, including R. Fradiue, had come to Hilt's cousin's house, paid cash and purchased the SUV from Hilt. Hilt also told police during the interview that he later learned from his cousin that "Randy" (i.e., Rollins) had accompanied R. Fradiue when they bought the SUV from Hilt.
There appears to be some confusion whether Rollins or Walker or both accompanied R. Fradiue when the SUV was purchased. The people in their brief state Hilt identified Walker as the person with R. Fradiue when Hilt sold the SUV. However, on cross-examination of Sergeant Steven Pennington of the San Bernardino County Sheriff's Department, Sergeant Pennington, who participated in the Hilt interview, admitted that Hilt initially was unable to identify the individual who came with R. Fradiue to buy the SUV. However, after speaking with his cousin who helped arrange the sale of the vehicle, Hilt learned that the other individual was named "Randy" and that this individual drove the SUV away.
DISCUSSION
I
Gang-Murder Special Circumstance
Fradiue, joined by Walker, contends the court erred in instructing the jury with respect to the intent required of the shooter to support the gang-murder special circumstance finding. Specifically, Fradiue contends the instructions allowed his jury to find true the gang-murder special circumstance without a finding he intended to kill Inho.
Although Walker has joined in and expressly incorporated Fradiue's contention(s) of instructional error (see Cal. Rules of Court, rule 8.200(a)(5) (subsequent rule references are to California Rules of Court)), in this particular instance, we separately discuss Walker's claim of instructional error post.
As noted, Fradiue and Walker were charged in count 1 with robbery/felony murder (§ 190.2, subd. (a)(17)(A)) and gang-murder (id., subd. (a)(22)) special circumstances. By its terms, the gang-murder special circumstance requires intent to kill: "The defendant intentionally killed the victim while the defendant was an active participant in a criminal street gang, as defined in subdivision (f) of Section 186.22, and the murder was carried out to further the activities of the criminal street gang." (§ 190.2, subd. (a)(22), italics added.)
As a result, gang murder is not governed by subdivision (b) of section 190.2, which eliminates the intent to kill requirement by the actual killer under certain circumstances. Subdivision (b) provides in relevant part: "Unless an intent to kill is specifically required under subdivision (a) for a special circumstance therein, an actual killer, as to whom the special circumstance has been found true under Section 190.4, need not have had any intent to kill at the time of the commission of the offense . . . ." (§ 190.2, subd. (b); italics added.) Unlike gang murder, the robbery/felony murder special circumstance does not require an intent to kill. (§ 190.2, subds. (a)(17)(A) & (b).)
A. Fradiue
Fradiue was prosecuted on the theory he was the actual killer, a finding he concedes on appeal. Thus, at least with respect to the gang-murder special circumstance, the People were required to prove Fradiue had the intent to kill. (§ 190.2, subd. (a)(22).)
In instructing the Rollins jury (in the presence of the separate Fradiue jury), the court gave a modified version of former CALCRIM No. 703, titled, "Special Circumstances: Intent Requirement for Accomplice After June 5, 1990—Felony Murder." The court instructed the Rollins jury as follows: "If you decide that the defendant Randy Rollins is guilty of first degree murder but was not the actual killer, then when you consider the special circumstances of Murder in the course of Robbery and/or Criminal Street Gang Murder, you must also decide whether the defendant acted either with intent to kill or with reckless indifference to human life.
"In order to prove these special circumstances for a defendant who is not the actual killer but who is guilty of first degree murder as an aider and abettor or a member of a conspiracy, the People must prove either that the defendant intended to kill, or the People must prove all the following [in connection with reckless indifference] . . . .
"The People do not have to prove that the actual killer acted with intent to kill or with reckless indifference to human life in order for the special circumstances of Murder in the course of Robbery and/or Criminal Street Gang Murder to be true." (Italics added; italics in original deleted.)
Fradiue contends the last paragraph of this instruction to the Rollins jury was "true" for Fradiue with respect to robbery/felony murder (see § 190.2, subds. (a)(17)(A) & subd. (b)), but not "true" with respect to the gang-murder (see § 190.2, subds. (a)(22) & (b)), special circumstance. That is, because gang murder requires a finding that the actual killer had an intent to kill and because Fradiue was the actual killer, he argues this instructional error to the Rollins jury nonetheless was prejudicial to him (i.e., Fradiue) and requires reversal of his gang-murder special circumstance.
We sought and received supplemental briefing from the parties on the issue of whether this alleged instructional error resulted "in a miscarriage of justice" (Cal. Const., art. VI, § 13) to Fradiue and separately, to Walker, inasmuch as neither Fradiue nor Walker directly challenged the robbery/felony murder special circumstance instruction or finding, which also supported each defendant's sentence of life without the possibility of parole. (See § 190.2, subd. (a).)
1. Guiding Principles
"In reviewing a claim of instructional error, the ultimate question is whether 'there was a reasonable likelihood the jury applied the challenged instruction in an impermissible manner.' [Citation.] '[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction.' [Citation.] 'Moreover, any theoretical possibility of confusion [may be] diminished by the parties' closing arguments. . . .' [Citation.] ' " 'Jurors are presumed to be intelligent, capable of understanding instructions and applying them to the facts of the case.' " ' [Citation.]" (People v. Hajek (2014) 58 Cal.4th 1144, 1220 (Hajek), overruled on another ground as stated in People v. Rangel (2016) 62 Cal.4th 1192, 1216.)
2. Analysis
Here, focusing on the instructions as a whole (see Hajek, supra, 58 Cal.4th at p. 1220), we reject Fradiue's claim that, in instructing the Rollins jury on the intent required for the special circumstances true findings with respect to an accomplice, there was a reasonable likelihood the Fradiue jury applied the challenged portion of the instruction in an impermissible manner. (Ibid.)
Indeed, the record shows that in instructing the jury with the modified version of former CALCRIM No. 703, the court specifically referenced defendant Randy Rollins in the first paragraph of the instruction; that the instruction also noted if the jury found Rollins "guilty of first degree murder but was not the actual killer" (italics added), then it could still make true findings on the robbery/felony murder and gang-murder special circumstances; that in the second paragraph of the challenged instruction, the jury was told that "[i]n order to prove these special circumstances for a defendant who is not the actual killer, but who is guilty of first degree murder as an aider and abettor" (italics added), the People needed to prove certain other elements; and perhaps most importantly, that Fradiue was tried on the theory he was the actual killer, as noted ante.
We thus independently conclude (see People v. Berryman (1993) 6 Cal.4th 1048, 1077 (Berryman), overruled on another ground as stated in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1) that there was not a reasonable likelihood the Fradiue jury applied the challenged portion of modified CALCRIM No. 703 directed to the Rollins jury in such a manner that it could find true as to Fradiue the special circumstance of gang murder without also finding he intentionally killed Inho. (See Hajek, supra, 58 Cal.4th at p. 1220.)
Fradiue contends on appeal there was evidence in the record to support a finding he did not intend to kill Inho. However, as a court of review, we are required to defer to a jury's judgment as to the credibility of witnesses and to the jury's resolution of evidentiary conflicts so long as substantial evidence supports its verdicts. (See People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
What's more, the record shows the court properly instructed the jury as follows with a modified version of former CALCRIM No. 730, titled "Special Circumstances: Murder in Commission of Felony (Pen. Code, § 190.2(a)(17)": "The defendants are charged with the special circumstance of murder committed while engaged in the commission of Robbery. [¶] To prove that this special circumstance is true, the People must prove that: [¶] 1. The defendant committed or aided and abetted, or was a member of a conspiracy to commit Robbery; [¶] 2. The defendant intended to commit, or intended to aid and abet the perpetrator in committing, or intended that one or more of the members of the conspiracy commit Robbery; [¶] 3. If the defendant did not personally commit Robbery, then a perpetrator, whom the defendant was aiding and abetting before or during the killing or with whom the defendant conspired, personally committed Robbery; [¶] AND [¶] 4. Larry Fradiue did an act that caused the death of another person.
"To decide whether the defendant and the perpetrator committed Robbery, please refer to the separate instructions that I will give you on that crime. To decide whether the defendant aided and abetted a crime, please refer to the separate instructions that I have given you on aiding and abetting. To decide whether the defendant was a member of a conspiracy to commit a crime, please refer to the separate instructions that I have given you on conspiracy. You must apply those instructions when you decide whether the People have proved first degree murder under a theory of felony murder.
"The defendant must have intended to commit, or aided and abetted, or been a member of a conspiracy to commit the felony of Robbery before or at the time of the act causing the death." (Italics added.)
The record shows the court also instructed the jury in part as follows with a modified version of former CALCRIM No. 736 titled, "Special Circumstances: Killing by Street Gang Member (Pen. Code, § 190.2(a)(22)": "The defendants are charged with the special circumstance of committing murder while an active participant in a criminal street gang. [¶] To prove that this special circumstance is true, the People must prove that: [¶] 1. The defendant intentionally killed [Inho]; [¶] 2. At the time of the killing, the defendant was an active participant in a criminal street gang; [¶] 3. The defendant knew that members of the gang engage or have engaged in a pattern of criminal gang activity; [¶] AND [¶] 4. The murder was carried out to further the activities of the criminal street gang." (Italics added.)
CALCRIM No. 736, unlike CALCRIM No. 730, does not specifically mention Fradiue by name. However, we conclude the reference to "the defendant" in modified CALCRIM No. 736 means Fradiue, given the specific reference to Fradiue in CALCRIM No. 730 and given the prosecution's theory of the case that he was the actual shooter.
Indeed, during closing argument, the record shows the prosecutor reminded the jury that the People's theory of the case was that Fradiue was the shooter. Specifically, the prosecutor referenced Fradiue when she stated: "He was in possession of a loaded firearm which is consistent with the types of activities and pattern offenses that this gang [i.e., SBC] is known for. He was the shooter in this case, again, showing his participation and being involved in one of their primary activities" of SBC. (Italics added.)
Shortly thereafter in discussing the gang-murder special circumstance, the prosecutor argued as follows: "In this case, the gang special circumstance is true. How? Larry Fradiue shot [Inho]. Again, after giving warning shots. This is shown on video surveillance. It's proven through the defendant's opening statements. The defendant was an active participant in [SBC]." (Italics added.)
The record shows during closing, Fradiue's defense counsel likewise stated that Fradiue was the shooter, but argued Fradiue was under duress when he shot Inho. As such, Fradiue's defense counsel asked the jury to find Fradiue committed second, and not first, degree murder.
Thus, considering the instructions as a whole and the argument of counsel including Fradiue's defense counsel, we independently conclude (see Berryman, supra, 6 Cal.4th at p. 1077) there was not a reasonable likelihood that the Fradiue jury was confused by the court's instruction of modified former CALCRIM No. 703 to the Rollins jury and, thus, that it could find true as to Fradiue the gang-murder special circumstance without also finding he intentionally killed Inho. (See Hajek, supra, 58 Cal.4th at p. 1220; § 190.2, subd. (a)(22).)
In light of our decision concerning this alleged instructional error as to Fradiue, we need not decide the People's alternate contention that any such error was harmless under any standard.
B. Walker
As noted, Walker also contends the court's instruction of his jury with modified CALCRIM No. 703 was error. The People concede this error and state that reversal of the gang-murder special circumstance as to Walker is required.
The legal principles applicable to Fradiue also guide us here.
Because Fradiue and not Walker was the actual shooter, subdivision (c) of section 190.2 is implicated. It provides: "Every person, not the actual killer, who, with the intent to kill, aids, abets, counsels, commands, induces, solicits, requests, or assists any actor in the commission of murder in the first degree shall be punished by death or imprisonment in the state prison for life without the possibility of parole if one or more of the special circumstances enumerated in subdivision (a) has been found to be true under Section 190.4." (Italics added.)
Further, subdivision (d) of section 190.2 also applies to Walker. It provides: "Notwithstanding subdivision (c), every person, not the actual killer, who, with reckless indifference to human life and as a major participant, aids, abets, counsels, commands, induces, solicits, requests, or assists in the commission of a felony enumerated in paragraph (17) of subdivision (a) which results in the death of some person or persons, and who is found guilty of murder in the first degree therefor, shall be punished by death or imprisonment in the state prison for life without the possibility of parole if a special circumstance enumerated in paragraph (17) of subdivision (a) has been found to be true under Section 190.4." (Italics added.)
The record shows the court instructed the Walker jury as follows with a modified version of former CALCRIM No. 703: "If you decide that defendant Deonta Walker is guilty of first degree murder but was not the actual killer, then, when you consider the special circumstances of Murder in the course of Robbery and/or Criminal Street Gang Murder, you must also decide whether the defendant acted either with intent to kill or with reckless indifference to human life.
"In order to prove these special circumstances for a defendant who is not the actual killer but who is guilty of first degree murder as an aider and abettor or a member of a conspiracy, the People must prove either that the defendant intended to kill, or the People must prove all of the following: [¶] 1. The defendant's participation in the crime began before or during the killing; [¶] 2. The defendant was a major participant in the crime; [¶] AND [¶] 3. When the defendant participated in the crime, he acted with reckless indifference to human life.
"A person acts with reckless indifference to human life when he or she knowingly engages in criminal activity that he or she knows involves a grave risk of death. [¶] The People do not have to prove that the actual killer acted with intent to kill or with reckless indifference to human life in order for the special circumstances of Murder in the course of Robbery and/or Criminal Street Gang Murder to be true.
"If the defendant was not the actual killer, then the People have the burden of proving beyond a reasonable doubt that he acted with either the intent to kill or with reckless indifference to human life and was a major participant in the crime for the special circumstances of Murder in the Course of Robbery and/or Street Gang [Murder] to be true. If the People have not met this burden, you must find these special circumstances have not been proved true for that defendant."
After instructing the Walker jury with modified former CALCRIM No. 703, the court gave modified CALCRIM No. 705 as follows: "In order to prove the special circumstances of Murder in Commission of Felony and Killing by Street Gang Member, the People must prove not only that the defendant did the acts charged, but also that he acted with a particular intent or mental state. The instruction for each special circumstance explains the intent or mental state required.
"An intent or mental state may be proved by circumstantial evidence.
"Before you may rely on circumstantial evidence to conclude that the defendant had the required intent or mental state, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt.
"Also, before you may rely on circumstantial evidence to conclude that the defendant had the required intent or mental state, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant had the required intent or mental state. If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions supports a finding that the defendant did have the required intent or mental state and another reasonable conclusion supports a finding that the defendant did not have the required intent or mental state, you must conclude that the required intent or mental state was not proved by the circumstantial evidence. However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable."
The Walker jury also was instructed as follows with a modified version of former CALCRIM No. 736: "The defendant is charged with the special circumstance of committing murder while an active participant in a criminal street gang. [¶] To prove that this special circumstance is true, the People must prove that: [¶] 1. The defendant intentionally killed [Inho]; [¶] 2. At the time of the killing, the defendant was an active participant in a criminal street gang; [¶] 3. The defendant knew that members of the gang engage in or have engaged in a pattern of criminal gang activity; [¶] AND [¶] 4. The murder was carried out to further the activities of the criminal street gang.
"Active participation means involvement with a criminal street gang in a way that is more than passive or in name only. [¶] The People do not have to prove that the defendant devoted all or a substantial part of his time or efforts to the gang, or that he was an actual member of the gang.
"A criminal street gang is defined in another instruction to which you should refer. [¶] The crimes, if any, that establish a pattern of criminal gang activity, need not be gang-related.
"If you find the defendant guilty of a crime in this case, you may consider that crime in deciding whether one of the group's primary activities was commission of that crime and whether a pattern of criminal gang activity has been proved."
Finally, as noted by the People, the record unambiguously shows that during closing in the Walker trial, the prosecutor specifically argued the gang-murder special circumstance applied to Walker not based on the fact he intended to kill victim Inho, as required under subdivision (c) of section 190.2 (because gang murder requires such an intent of the "actual killer" (§ 190.2, subd. (a)(22)), but rather as a result of his reckless indifference to human life.
Specifically, the prosecutor argued, "Now, there are special circumstances that apply to Count 1, and Count 1 only if you find first degree murder; okay? If you find that the defendant is guilty of murder but that it's second degree, the special circumstances don't apply. But in this case, because first degree murder has been proven, the special circumstances apply to Count 1.
"With regard to the defendant's [i.e., Walker] intent, because he's a nonkiller, I have to prove that either he had the intent to kill, or that the defendant's participation in the crime began before or during the killing, that the defendant was a major participant in the crime, and that when the defendant participated in the crime, he acted with reckless indifference to human life. Reckless indifference means he knowingly engaged in criminal activity he knows involves a grave risk of death.
"Well, how do we know his intent? It would be the latter. I have to show that the defendant's participation in the crime began before or during the killing. We know that he was already participating in the robbery way before the killing occurred. He was a major participant in that robbery. He had a specific role. Although the hammer he touched that he was using broke, he's still seen on the video carrying jewelry out, and he's also seen standing in between the one individual, as he's watching, between that individual and Randy Rollins." (Italics added.)
On this record, we join the parties and independently conclude (see Berryman, supra, 6 Cal.4th at p. 1077) that the court prejudicially erred in instructing the Walker jury in connection with the gang-murder special circumstance. Indeed, in order for a true finding under the gang-murder special circumstance to be made against an accomplice such as Walker, as opposed to the actual killer such as Fradiue, the jury was required to find Walker had an intent to kill, inasmuch as subdivision (a)(22) of section 190.2 specifically requires that a defendant intentionally killed the victim and subdivision (c) of this statute requires an intent to kill when a defendant, guilty of first degree murder, is an accomplice and not the actual shooter.
Because the jury was instructed it could make a true finding as to Walker under the gang-murder (as opposed to the robbery/felony murder) special circumstance if he was recklessly indifferent to human life, this instruction was prejudicial error. Thus, as to Walker, we further conclude the true finding on the gang-murder (but not on the robbery/felony murder) special circumstance must be reversed. (See People v. Pearson (2012) 53 Cal.4th 306, 324 [noting the reversal of the torture-murder special circumstance "does not . . . require the reversal of the judgment of death, because numerous special circumstance findings remain, unaffected by the instructional error"].)
II
Exclusion of Fradiue's Statement to Police
A. Sixth Amendment Right to Counsel
Fradiue contends the trial court erred when it refused to suppress his statement/confession to detectives in May 2012, because he contends his Sixth Amendment right to counsel had attached at the time of the stationhouse interview and because his waiver of this right was invalid, despite being admonished under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) of his right to counsel.
1. Additional Background
The record shows a felony complaint was filed against Fradiue, Walker and Rollins on April 6, 2012, for the robbery of the jewelry store and the Inho homicide. The record further shows Fradiue and Rollins were located in Columbus, Georgia on May 8, 2012, and arrested for the instant offenses. The next day, detectives Mike Flores and Mike Smith interviewed Fradiue in the Columbus, Georgia police station. That interview was recorded and over objection, a redacted portion of it ultimately was played for the jury.
The prosecution moved in limine to admit Fradiue's statement to detectives. At the pretrial hearing, Detective Flores testified that during the May 9 interview, Fradiue was wearing an "inmate jumpsuit from the local jail where he was housed"; that Fradiue was then in custody as he had been arrested by United States Marshals as a result of the March 26, 2012 robbery and homicide; that Fradiue's arrest was the result of a warrant that had been issued; and that the interview lasted about five and a half hours.
The record shows at the beginning of the interview, the detectives asked Fradiue "routine types of personal questions" such as the spelling of his name, his date of birth, his cell phone number and his address. Next, Detective Smith told Fradiue that he and his partner were from the San Bernardino County Sheriff's Department and that they had flown out to Georgia to speak with Fradiue; and that in a few days they would be taking Fradiue and Rollins "back with [them] on the plane."
After some general conversation between Detective Smith and Fradiue that had nothing to do with the charged offenses, Detective Smith told Fradiue that it was "important" to get his "side of the story" because "there's some things that happened um in this whole case there—there was a robbery in . . . [and] a shooting in uh Victorville California okay?" The following colloquy then took place:
"[Detective] Smith: Um what I want to tell you is that—that there's some things that happened that I don't think were meant to happen I think they're things may have got out of control and I think uh-uh serious accident may have occurred okay and that's basically what I'm here to talk to you about okay me and my partner here that's basically what we're here okay and uh what I'd like to do is before we talk about it we talk or anything like that I want to advise you of your rights, have you had your rights read to you before?
"Fradiue: No.
"[Detective] Smith: Do you know what your Miranda [r]ights are?
"Fradiue: Uh uh oh yeah—yeah I know
"[Detective] Smith: Okay that's what, that what I'm talking about, um as a, as a formality and you know I just like for you to understand your rights you know what I'm saying?
"Fradiue: Uh huh.
"[Detective] Smith: So you, so you know okay um anytime we start talking about something that you don't want to talk about
"Fradiue: Oh yeah
"[Detective] Smith: then we can stop talking about it
"Fradiue: Yeah
"[Detective] Smith: or we can talk about somethin' else, you want to talk about, you want to stop talking about it you want to talk about football or somethin' you like to talk about and you don't feel like talking about this anymore, talk about something else you know whether something you enjoy doing or something you like to do I don't know exactly you know I'm, you like.
"Fradiue: I really don't know
"[Detective] Smith: You don't?
"Fradiue: I only like (inaudible) and being with my kids
"[Detective] Smith: Okay
"Fradiue: that's all I care about
"[Detective] Smith: You can talk about your kids if you don't want to talk about
"Fradiue: That all I
"[Detective] Smith: this bullshit anymore we can talk about somethin' else okay but I just want to make sure you understand
"Fradiue: Yeah
"[Detective] Smith: Okay if you want to change the subject tell me hey Mike can we change the subject I don't want to talk about it alright let's talk about somethin' else
"Fradiue: Uh huh
"[Detective] Smith: Okay but before we do that I'd like to read you your rights
"Fradiue: Uh huh
"[Detective] Smith: So you understand okay is that cool with you sound like
"Fradiue: Uh huh
"[Detective] Smith: what you'd like to do?
"Fradiue: Uh huh
"[Detective] Smith: Okay alright um Larry uh you have the right to remain silent okay anything you say can be used against you in court
"Fradiue: Uh huh
"[Detective] Smith: Do you understand that um you have the right to an attorney
before and during any questioning
"Fradiue: Uh huh
"[Detective] Smith: Okay if you cannot afford an attorney one will be appointed for you by the court free of charge before questioning
"Fradiue: Uh huh
"[Detective] Smith: Do you understand that?
"Fradiue: Uh huh
"[Detective] Smith: Okay alright um so you—you understand all the, everything I just explained to you
"Fradiue: Uh huh
"[Detective] Smith: all the rights I've explained to you okay with your rights in mind do you want to—to talk to me and—and clarify some things give me your side of the story?
"Fradiue: Uh huh (inaudible)" (Italics added.)
In connection with the motion to admit Fradiue's statement, Detective Flores testified that when Detective Smith asked Fradiue for his "side of the story," Fradiue in response actually said, "I don't know nothing about nothing." Fradiue then began complaining about his parole status, which he claimed was the reason he left California. However, after further questioning (discussed in more detail post in connection with Fradiue's contention his confession was involuntary), Fradiue later admitted that he was involved in the robbery of the jewelry store and that he shot Inho, although he denied he intended to kill Inho.
At the in limine hearing, Fradiue argued his statement should be suppressed under both Miranda (Fifth Amendment) and Massiah v. United States (1964) 377 U.S. 201 (Massiah) (Sixth Amendment), contending his waiver of such rights was unknowing and unintelligent. After extensive argument by the parties and as relevant here, the court found Fradiue waived his Sixth Amendment right to counsel after being admonished with his Miranda rights and after Fradiue voluntarily agreed to speak with the detectives following this admonishment.
2. Guiding Principles
"[O]nce the adversary judicial process has been initiated, the Sixth Amendment guarantees a defendant the right to have counsel present at all 'critical' stages of the criminal proceedings. United States v. Wade, 388 U.S. 218, 227-228 (1967); Powell v. Alabama, 287 U.S. 45, 57 (1932). Interrogation by the State is such a stage. Massiah[, supra,] 377 U.S. [at pp.] 204-205; see also United States v. Henry, 447 U.S. 264, 274 (1980)." (Montejo v. Louisiana (2009) 556 U.S. 778, 786 (Montejo).)
Although our high court has yet to address the specific issue, case law supports the proposition that the right to counsel attaches, and Massiah's prohibition against interrogation takes effect, when a criminal complaint is filed against the defendant (People v. Viray (2005) 134 Cal.App.4th 1186, 1194 (Viray)), as opposed to when a defendant is "indicted or arraigned" (People v. Frye (1998) 18 Cal.4th 894, 987, overruled on another ground as stated in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22 (Doolin)).
It is "beyond doubt that the Sixth Amendment right to counsel may be waived by a defendant, so long as relinquishment of the right is voluntary, knowing, and intelligent. Patterson v. Illinois, 487 U.S. 285, 292, n. 4 (1988) [(Patterson)]; Brewer v. Williams, 430 U.S. 387, 404 (1977); Johnson v. Zerbst, 304 U.S. 458, 464 (1938). The defendant may waive the right whether or not he [or she] is already represented by counsel; the decision to waive need not itself be counseled. Michigan v. Harvey, 494 U.S. 344, 352-353 (1990). And when a defendant is read his [or her] Miranda rights (which include the right to have counsel present during interrogation) and agrees to waive those rights, that typically does the trick, even though the Miranda rights purportedly have their source in the Fifth Amendment: [¶] 'As a general matter . . . an accused who is admonished with the warnings prescribed by this Court in Miranda . . . has been sufficiently apprised of the nature of his [or her] Sixth Amendment rights, and of the consequences of abandoning those rights, so that his [or her] waiver on this basis will be considered a knowing and intelligent one.' Patterson, supra, at 296." (Montejo, supra, 556 U.S. at pp. 786-787.)
"On appeal, we review independently the trial court's legal determinations of whether a defendant's statements were voluntary [citation], whether his [or her] Miranda waivers were knowingly, intelligently, and voluntarily made [citation], and whether his [or her] later actions constituted an invocation of his [or her] right to silence [citation]. We evaluate the trial court's factual findings regarding the circumstances surrounding the defendant's statements and waivers, and ' "accept the trial court's resolution of disputed facts and inferences, and its evaluations of credibility, if supported by substantial evidence." ' [Citations.]" (People v. Rundle (2008) 43 Cal.4th 76, 115 (Rundle), overruled on another ground as stated in Doolin, supra, 45 Cal.4th at p. 421, fn. 21.) While we must make an independent determination from our review of the record, "we, like the United States Supreme Court, may 'give great weight to the considered conclusions' of a lower court that has previously reviewed the same evidence. [Citation.]" (People v. Jennings (1988) 46 Cal.3d 963, 979 (Jennings), quoting Miller v. Fenton (1985) 474 U.S. 104, 112.)
3. Analysis
Here, assuming, without deciding, Fradiue's Sixth Amendment right to counsel attached when the felony complaint was filed against him (and others) on April 6, 2012 (see Viray, supra, 134 Cal.App.4th at p. 1194), we nonetheless conclude Fradiue voluntarily and knowingly waived that right.
Indeed, as summarized ante, the record shows Fradiue was advised under Miranda that he had the right to have an attorney present both before and during questioning and that, if he could not afford an attorney, the right to have an attorney appointed before questioning commenced. He also was advised that if at any time he did not want to talk to detectives, he could stop talking and that anything he said could be used against him in court. On this record, we thus conclude his waiver of his right to counsel under the Fifth Amendment was also sufficient to waive his Sixth Amendment right to counsel. (See Patterson, supra, 487 U.S. at p. 296.)
The court noted in Patterson that its opinion did "not mean, of course, that all Sixth Amendment challenges to the conduct of postindictment questioning will fail whenever the challenged practice would pass constitutional muster under Miranda. For example, we have permitted a Miranda waiver to stand where a suspect was not told that his lawyer was trying to reach him during questioning; in the Sixth Amendment context, this waiver would not be valid." (Patterson, supra, 487 U.S. at p. 296, fn. 9.)
Fradiue contends his waiver of the right to counsel under Miranda was invalid for purposes of the Sixth Amendment because before questioning, the detectives neither told him that he had been charged for the March 26 robbery and homicide nor that he was under arrest for his role in those crimes. In making this contention, Fradiue principally relies on People v. Engert (1987) 193 Cal.App.3d 1518 (Engert).
The court in People v. Henderson (1990) 225 Cal.App.3d 1129, 1160-1161 (Henderson) (disapproved on another point as stated in People v. Davis (1994) 7 Cal.4th 797, 807), cogently summarized the facts and holding of Engert as follows: "The Engert court considered the admissibility of a defendant's statement when the defendant had not been informed by police of the fact of his arrest, or that a complaint for murder had been filed against him. In Engert, the police led the defendant to believe he was not even a suspect in the murder case. The Court of Appeal held the statement was taken in violation of his Sixth Amendment right to counsel and that the police conduct of misrepresenting the fact of his arrest and the filing of a complaint against him precluded a knowing waiver of that right. [Citation.] '[W]e conclude that there can be no valid Sixth Amendment waiver of the right to counsel unless a defendant is informed, or it is otherwise established that he [or she] was aware, of his [or her] arrest or that charges have been filed against him [or her].' [Citation.]"
Initially, we note Engert's pronouncement of the rule relied on by Fradiue was made at a time when there was substantial doubt whether Miranda waivers could suffice as knowing and intelligent waivers of the Sixth Amendment right, as the court in Engert itself recognized. (See Engert, supra, 193 Cal.App.3d at pp. 1525-1526 [discussing such cases]). We further note the court in Patterson resolved that doubt less than a year later when it concluded that an accused admonished with Miranda warnings has been "sufficiently apprised of the nature of his [or her] Sixth Amendment rights" to make such a waiver "knowing and intelligent." (Patterson, supra, 487 U.S. at p. 296.)
Unlike the facts of Engert where the defendant was actively misled by police, the facts of Henderson are similar to those at issue in the instant case. In Henderson, the defendant was arrested in Florida pursuant to an arrest warrant issued in California after a complaint for multiple murder had been filed against her. After she was arrested, San Francisco police advised her of the Miranda warnings and asked if she wished to speak to them, and she agreed to do so. (Henderson, supra, 225 Cal.App.3d at p. 1159.)
The defendant in Henderson subsequently argued that the trial court erroneously denied suppression of her statement after her arrest in Florida, and that the statement was taken in violation of her Sixth Amendment right to counsel, because the murder charges had already been filed in California. Like Fradiue here, the defendant there argued her waiver was ineffective in view of the fact that she had not been informed the complaint for multiple murders had already been filed against her. (Henderson, supra, 225 Cal.App.3d at pp. 1159-1160.)
In rejecting this contention, the Henderson court recognized that the defendant's statements had not been "elicited by trickery or deception" (Henderson, supra, 225 Cal.app.3d at p. 1159), in contrast to the statements that were suppressed in Engert; that the defendant was "fully aware that her statement was being recorded," unlike the statements taken by surreptitious means that were suppressed by the court in Massiah; that the defendant had been fully advised of her Miranda rights, including that any statement she made might be used against her in court; that the defendant waived her right to the presence of counsel; and that she had not retained or received appointed counsel at the time of the interview. (Id. at pp. 1159-1160.)
Under those circumstances, the court in Henderson recognized the rule, which we adopt here, that "[w]hen a complaint has been filed and an arrest has been made and the accused is not represented by counsel, there is no absolute prohibition against the police eliciting a statement from the accused so long as the waiver of the right to have counsel present is free and voluntary." (Henderson, supra, 225 Cal.App.3d at p. 1160.)
Here, like the facts in Henderson and quite unlike the facts in Engert, defendant Fradiue knew he had been arrested under a warrant, inasmuch as he was wearing an orange "jump suit" from the Georgia jail at the time of the interview. The record also shows that the two detectives interviewed Fradiue at a Georgia police station; that they told Fradiue they were from the San Bernardino Sheriff's Department; that they also told Fradiue they had flown to Georgia to meet with Fradiue and Rollins and they would be taking both suspects back to San Bernardino County in a few days; and that shortly after the interview commenced and after some routine questions having nothing to do with the charged offenses, the detectives told Fradiue they wanted "his side of the story" concerning a robbery and shooting in Victorville. Thus, the record shows that before defendant Fradiue made any incriminating statements, he knew not only that he was under arrest, but that he was being questioned by detectives from San Bernardino County because he was a suspect in the robbery and shooting in Victorville.
What's more, the record shows before Fradiue made any incriminating statements he was fully advised of his Miranda rights, including the right to remain silent, the right to have an attorney present before and during questioning and if he could not afford an attorney, the right to have one appointed before questioning. The record also shows Fradiue nonetheless continued to speak with detectives after being advised of these rights. We thus conclude on this record that Fradiue's waiver of his Sixth Amendment right to counsel was knowing and intelligent.
Fradiue, however, cites to a portion of a footnote from Patterson to support his contention his waiver of the Sixth Amendment right to counsel was invalid, despite receiving adequate Miranda warnings. After concluding that Miranda waivers were sufficient to also waive the Sixth Amendment right to counsel, the court in Patterson noted the defendant "in the proceedings before this Court" was unable to "articulate with precision what additional information should have been provided to him before he would have been competent to waive his right to counsel." (Patterson, supra, 487 U.S. at p. 294.) The court further noted the cases on which the defendant had relied were also "similarly lacking." (Id. at p. 295.)
The court in footnote 8, a portion of which Fradiue relies on in the instant case, then stated in part as follows:
"Even those lower court cases which have suggested that something beyond Miranda warnings is—or may be—required before a Sixth Amendment waiver can be considered 'knowing and intelligent' have failed to suggest just what this 'something more' should be. [Citations.] [¶] An exception to this is the occasional suggestion that, in addition to the Miranda warnings, an accused should be informed that he has been indicted before a postindictment waiver is sought. [Citations.] Because, in this case, petitioner concedes that he was so informed [cite], we do not address the question whether or not an accused must be told that he has been indicted before a postindictment Sixth Amendment waiver will be valid. Nor do we even pass on the desirability of so informing the accused—a matter that can be reasonably debated." (Patterson, supra, 487 U.S. at p. 295, fn. 8.)
Patterson does not stand for the proposition that a defendant must be told he or she has been indicted (an accusation level beyond the April 6, 2012 felony complaint at issue here) in order for a Sixth Amendment waiver to be valid. To the contrary, Patterson specifically refused to "even pass on the desirability of so informing the accused" and noted that whether a defendant must be so informed was a subject matter that "can be reasonably debated." (Patterson, supra, 487 U.S. at p. 295, fn. 8.)
More telling perhaps, footnote 8, when viewed in context, arose in connection with the court's point that neither the defendant in Patterson nor the cases on which he relied articulated "what additional information should have been provided to him before he would have been competent to waive his right to counsel." (Patterson, supra, 487 U.S. at p. 294.) The court ultimately concluded in Patterson that no such "additional information" was required. In so doing, the court cited to what was then a recent Fifth Amendment case it found equally apposite to its Sixth Amendment waiver analysis: " 'Once it is determined that a suspect's decision not to rely on his [or her] rights was uncoerced, that he [or she] at all times knew he [or she] could stand mute and request a lawyer, and that he [or she] was aware of the State's intention to use his [or her] statements to secure a conviction, the analysis is complete and the waiver is valid as a matter of law.' See Moran v. Burbine [(1986)] 475 U.S. [412], 422-423." (Patterson, supra, 487 U.S. at pp. 296-297.)
We thus reject Fradiue's contention that Patterson requires "something more" for there to be a knowing and intelligent waiver of the Sixth Amendment right to counsel when a defendant, under circumstances similar to those in the instant case, was fully advised of his or her rights under Miranda and nonetheless continued to speak freely with police.
In particular, we reject Fradiue's contention that this "something more" requires a defendant to be told he or she has been indicted, or in this case, formally charged with, or under arrest for, a crime on which he or she is being questioned about. Instead, as Patterson and Henderson correctly note, the central inquiry is whether under the circumstances a defendant's decision not to rely on his or her rights was coerced. In this case, we conclude substantial evidence supports the finding that Fradiue's decision to waive his Sixth Amendment right was knowing, intelligent and uncoerced. (See Jennings, supra, 46 Cal.3d at p. 979; Rundle, supra, 43 Cal.4th at p. 115.)
In any event, the record shows when detectives asked Fradiue why he thought the detectives had flown to Georgia to meet with him, Fradiue responded, "(Inaudible) I guess I'm like I seen a paper it showed (inaudible) paperwork and stuff." When detectives asked Fradiue "Which paperwork," he responded "That there's a warrant pic there some picture of me (inaudible) and stuff and it said warrant and stuff." When asked by detectives what the warrant was for, Fradiue responded, "and you set it yeah it just said it on top murder." (Italics added.) When detectives clarified the warrant resulted from the "incident" that occurred in the afternoon on March 26, Fradiue responded, "Yeah" and then stated he allegedly was in Las Vegas on this date. Shortly thereafter, detectives told Fradiue that there had been a robbery in a jewelry store inside a swap meet in Victorville; that counters got "smashed" and that a man was shot as the robbers were "on the way out" of the swap meet. Thus, despite Fradiue's contention otherwise, there is substantial evidence in the record to support the finding he knew he was under arrest for murder as a result of the March 26 "incident" at the time detectives interviewed him when he waived his Sixth Amendment right to counsel. (See People v. Box (2000) 23 Cal.4th 1153, 1194 [recognizing the rule that when considering a claim that a statement or confession is inadmissible, a reviewing court " ' 'must accept the trial court's resolution of disputed facts and inferences, and its evaluations of credibility, if they are substantially supported" ' "], overruled on another ground as stated in People v. Martinez (2010) 47 Cal.4th 911, 948, fn. 10.) For this separate reason, we reject his contention his waiver of his Sixth Amendment right was unknowing and unintelligent.
B. Voluntariness
Fradiue next contends the court erred in refusing to suppress his May 9 statement to the detectives because it allegedly was the result of coercive interrogation tactics.
1. Guiding Principles
It is well-recognized that " '[b]oth the state and federal Constitutions bar the prosecution from introducing a defendant's involuntary confession into evidence at trial.' [Citations.] As with Miranda waivers, the People bear the burden of establishing by a preponderance of the evidence the voluntariness of a confession. [Citations.] [¶] . . . Where . . . an interview is recorded, the facts surrounding the admission or confession are undisputed and we may apply independent review. [Citation.]" (People v. Duff (2014) 58 Cal.4th 527, 551 (Duff).)
" ' "A statement is involuntary if it is not the product of ' "a rational intellect and free will." ' [Citation.] The test for determining whether a confession is voluntary is whether the defendant's 'will was overborne at the time he [or she] confessed.' " ' [Citation.] In assessing whether statements were the product of free will or coercion, we consider the totality of the circumstances, including ' " 'the crucial element of police coercion,' " ' the length, location, and continuity of the interrogation, and the defendant's maturity, education, and physical and mental health. [Citation.]" (Duff, supra, 58 Cal.4th at pp. 555-556.) "A finding of coercive police activity is a prerequisite to a finding that a confession was involuntary under the federal and state Constitutions. [Citation.]" (People v. Maury (2003) 30 Cal.4th 342, 404.)
In People v. Hill (1967) 66 Cal.2d 536, 549 (Hill), our Supreme Court explained: "The line to be drawn between permissible police conduct and conduct deemed to induce or to tend to induce an involuntary statement does not depend upon the bare language of inducement but rather upon the nature of the benefit to be derived by a defendant if he [or she] speaks the truth, as represented by the police. Thus, 'advice or exhortation by a police officer to an accused to "tell the truth" or that "it would be better to tell the truth" unaccompanied by either a threat or a promise, does not render a subsequent confession involuntary.' [Citation.] . . . [¶] When the benefit pointed out by the police to a suspect is merely that which flows naturally from a truthful and honest course of conduct, we can perceive nothing improper in such police activity. On the other hand, if in addition to the foregoing benefit, or in the place thereof, the defendant is given to understand that he might reasonably expect benefits in the nature of more lenient treatment at the hands of the police, prosecution or court in consideration of making a statement, even a truthful one, such motivation is deemed to render the statement involuntary and inadmissible. The offer or promise of such benefit need not be expressed, but may be implied from equivocal language not otherwise made clear."
2. Additional Background
As summarized ante, the May 9 interview of Fradiue occurred in the afternoon at a police station in Columbus, Georgia. At the in limine hearing, Detective Flores testified that the interview took place in two different locations at the police station; that initially the interview was conducted in a 10-foot by 10-foot room, with three chairs, and completed in an even larger room; and that the interview lasted about five and a half hours.
Although Detective Flores testified at the in limine hearing that the Fradiue interview began at about 8 a.m., the recording of the interview shows it began at 14:19 hours, or 2:19 p.m.
The record shows at one point during the interview the detectives confronted Fradiue with information they had learned from their investigation of the March 26 shooting. Specifically, they told Fradiue that they had spoken to a lot of people about the shooting and that "several people have pointed [Fradiue] out you know and . . . that's why we're here talking to you right now"; that Fradiue continued to deny any involvement after the detectives showed him still photographs of the suspects that were taken from the swap meet surveillance video; that during the interview, the detectives offered Fradiue water and asked him if he needed a bathroom break; that Fradiue complained he was allergic to certain foods and had been unable to eat the meal provided by the jail; that the detectives in response agreed to get Fradiue some food because they noted "[he] gotta eat"; and that they took a break at about 4 p.m., a little less than two hours after the interview had begun.
The record shows the break lasted about 25 minutes. When the interview resumed, the detectives told Fradiue they had ordered him some food; that Fradiue next discussed his various tattoos; that when the food arrived, the detectives moved Fradiue into another room and brought a "stand up heater" with them because Fradiue claimed he was "anemic" and got cold easily; that Fradiue went on at length about why he wanted to stay in Georgia, noting it was peaceful, land was cheap and he could perhaps start a farm and raise his four children, which he noted were the "only thing" that mattered to him; and that at about 5 p.m., the detectives asked Fradiue about meal time in the jail and Fradiue responded they served it at "around six."
At about this time, the record shows Fradiue claimed he first learned he was wanted for the murder when he was in Georgia, after the police "raided [his] auntie's house"; and that because Fradiue had lost his cell phone while staying in Las Vegas, he had been unaware of events in Compton until he arrived in Georgia. After Fradiue again denied ever being in Victorville, Detective Smith told Fradiue that up to then, they had been "straight" and not "play[ed] games" with him, but that Fradiue's palm print had been found on the door inside the swap meet. Detective Smith explained to Fradiue how the print comparison was done and how they arrived at this conclusion.
The record shows Detective Smith then said that he did not think Fradiue was a "cold[-]blooded killer"; that based on the way Fradiue spoke about his children, it was obvious he had a "heart" and an "emotional" side to him; and that, in connection with the March 26 shooting, perhaps Fradiue had "made a mistake" and as such, Fradiue "need[ed] to tell [Detective Smith], if it was an accident [Fradiue] need[ed] to tell [him] because when and if it goes to court this stuff obviously it has to come out" because "[f]ingerprints don't lie." The record shows Fradiue in response to such questioning kept stating, "Uh-huh."
Next, Detective Smith told Fradiue about the victim of the shooting, Inho. Detective Smith told Fradiue that Inho's family called Detective Smith "all the time" crying. Detective Smith again suggested to Fradiue that during the robbery, Fradiue had become scared and perhaps accidently pulled the trigger. The record shows Detective Smith next showed Fradiue the surveillance video and stated the video showed Fradiue holding a gun.
At or near the time he was showing Fradiue the video, Detective Smith made the following statement Fradiue primarily contends made his subsequent confession involuntary: "If you made a mistake Larry now's the time to tell me. I can't come back later on down the road and you talk to me and you tell me hey Smith I made a mistake, the gun accidently went off that's not gonna, that's not gonna . . . happen. All that's gonna happen is you're gonna look, you're gonna be sittin' there with people the jury's gonna be sittin' there and you're gonna look like a guy that goes out and shoots people because you don't care. I don't think that's you but if we don't talk about it now and we don't discuss these issues now and they don't come out that you have a heart and you made a mistake it's not gonna look good in court. Those people will give you the maximum that they can give you whatever end[s] up happening there[.]" (Italics added.)
The record shows Fradiue, in response to this statement, said, "Yeah."
Thereafter, the record shows the detectives encouraged Fradiue to tell the truth. The detectives again suggested to Fradiue that he had made a mistake when he shot Inho, after Inho chased the suspects outside the swap meet. Fradiue in response stated, "Yeah man I just I'm not gonna talk I'm (inaudible) hard to think right now."
Shortly thereafter, when Fradiue stated his situation was "hard," "really hard," the detective stated, "How you gonna bring your kids up? What are you gonna tell your kids?" The record shows Fradiue in response stated if the facts as represented were true, then "y'all gonna throw away the key." In response, Detective Smith stated, "Okay, I see what you're saying it's not my job to throw away the key okay" and "That's not my job—that's not my job. My job is just to figure out why things happen okay that's—that's my job . . . [¶] to figure out the facts." (Italics added.)
Later during the interview, the detectives told Fradiue that they already had spoken to Rollins and gotten his side of the story; that if Fradiue showed remorse and made a mistake in shooting Inho he should admit as much because "they will view that differently" than if Fradiue shot Inho in cold blood; that as Fradiue continued to wrestle with whether he should tell the detectives what happened at the swap meet, he finally asked for a cigarette and told the detectives he was "stressing out and this is being real."
Significantly at this point, the following colloquy took place between Fradiue and the detectives:
"Fradiue: This like you said if all this is true everything whatever they trying to say I did it whatever dude that's still me that I'm gonna spend the rest of my life behind bars
"[Detective] Smith: Are you asking me a question?
"Fradiue: Yeah
"[Detective] Smith: could it mean that? . . . [¶] . . . I treat people like I [¶] [w]ant to be treated okay that's the bottom line okay um if you're asking me could that happen absolutely. Absolutely I'm not gonna lie to you I am not gonna make up oh you're gonna be, you're gonna be home in—in two years I—I'm not gonna tell you that I'm not gonna lie to you okay I'm not gonna tell you that okay but do I know from experience that it means something if somebody has made a mistake and something went wrong that shouldn't have happened yes I do know that because I have personally sat through trials where I've seen that okay. I have seen that. Are you asking me if it could help you sentence wise I can never make a promise on that and I - I would never want to tell you hey if you tell me x, y an[d] z that it's gonna knock off five years uh six years or whatever I can't make you that promise I would never tell you that.
"Fradiue: This ain't even no years man this is now y'all this is life y'all talking, this is life it's talking doing life in prison just being life period this isn't being with kids, being with everything I just . . . . [¶] . . . [¶] It's an everyday struggle for me it's an everyday thing
"[Detective] Flores: We know that, we talked about that
"Fradiue: I've been a man, I raise my kids you feel me since I had my first child
"[Detective] Smith: You've been taking care
"Fradiue: You think I want, you think I want to do life
"[Detective] Smith: Absolutely not
"Fradiue: Fuck that it just you feel me nah man 'cause it just, it just kids that's all I care about is my kids
"[Detective] Smith: That's all we have man
"Fradiue: It's all I got
"[Detective] Smith: I have babies, he has babies
"Fradiue: And it's, and this generation and this world is to make sure they don't have to be, go through the struggle man the problems I went through you feel me
"[Detective] Smith: I feel you
"Fradiue: And that all this stuff I've been and this shit I've been through like you said trust me it would take a hell of I already know, I already know where I'm going, I already know come on let[']s go on this little bus (inaudible) I already know so why you feel me so why just do this and never see my kids again
"[Detective] Smith: Because it shows that you have a heart that's why Larry we talked about this before man
"Fradiue: It shows that it shows
"[Detective] Smith: It shows your kids that you have a heart and you make a mistake you could actually look your kids in the eye and actually tell them hey daddy messed up . . . ." (Italics added.)
The record shows at a later point in the interview, Fradiue was concerned about his safety and the safety of his family if he spoke to the detectives about the March 26 shooting. Fradiue asked the detectives to guarantee in writing his and his family's safety. After more back and forth, Detective Flores told Fradiue he would see what he could do but again, the detectives made clear to Fradiue they "[were'nt] gonna sit here and promise [him] anything we can't . . . ," to which Fradiue responded, "I know." (Italics added.) Detective Flores then told Fradiue, "There's—there's nothing that we can all—all we can do is have you tell us whatever you're gonna tell me."
After more back and forth, including Fradiue offering his opinion that law enforcement was targeting the "little fish" instead of the "big fish" and that in so doing, law enforcement was just throwing "another soul away" while the gangs got stronger and more powerful, Fradiue began to discuss a few details of the March 26 shooting, including that he was not paid any money by the gang for his participation and that the reason he participated was for "[a] better life and a better chance" away from the gang, after he put in "work" for the gang one last time.
3. Analysis
As is evident from the above summary, we have independently reviewed Fradiue's May 9 statement to detectives. We conclude this interrogation was not unduly coercive.
The record shows the detectives expressly told Fradiue more than once during the interview that they could not make him any promises if he gave "his side of the story" concerning the March 26 robbery and shooting. In fact, when Fradiue suggested to the detectives he might end up spending the rest of his life in prison, as noted Detective Flores in response said, "if you're asking me could that happen absolutely. Absolutely I'm not gonna lie to you." Detective Flores also told Fradiue he could not help him "sentence[-]wise," noting he could "never make a promise on that I—I would never want to tell you hey if you tell me x, y an[d] z, that it's gonna know off five years uh six years or whatever I can't make you that promise I would never tell you that . . . ."
As also noted ante, at one point earlier in the interview Detective Smith stated that it would not "look good in court" for Fradiue if he committed the murder in cold-blood, as opposed to shooting Inho because it was a "mistake" or an "accident," and that those "people w[ould] give [him] the maximum that they c[ould] give [him] whatever ends up happening there." Although somewhat ambiguous, this statement appears to suggest that if Fradiue confessed, he might receive less than the "maximum" punishment. We nonetheless conclude the subsequent statements by the detectives—including the ones by Detective Flores discussed ante—negated any suggestion of this earlier statement by Detective Smith that Fradiue would receive any leniency in return for his confession. (See Hill, supra, 66 Cal.2d at p. 549.)
Moreover, the record shows throughout the interview, the detectives emphasized to Fradiue that their role was merely to investigate the robbery and shooting, and not to pass judgment on him. They also emphasized to Fradiue that he should tell the truth because it was the right thing to do, it would ease his conscience and it would show his own family and the victim's family that he was not a cold-blooded killer, but instead, that Fradiue had a "heart," had made a "mistake" and had shot Inho because he was scared. We conclude these statements are "benefits" that flow naturally from a truthful and honest course of conduct, and, as such, we perceive nothing improper in such questioning. (See Hill, supra, 66 Cal.2d at p. 549.)
The record also does not suggest the detectives were physically coercive with Fradiue. To the contrary, for a portion of the interview they sat in a room estimated to be about 10 feet by 10 feet. After a break, they moved Fradiue into an even larger room, where he ate food the detectives had ordered him. Thus, there is no indication in the record that the detectives were positioned in such a way so as threaten or intimidate Fradiue. In fact, Detective Flores at the in limine hearing testified that he and his partner were both wearing a suit and tie and that he was not armed during the interview.
Nor was Fradiue led to believe he would be allowed to leave the stationhouse if he confessed. To the contrary, at the outset of the interview the detectives told Fradiue they would be taking him and Rollins back to San Bernardino County in a few days. Moreover, as discussed ante, the record shows Fradiue knew before the interview began that he had been arrested by U.S. Marshalls for his role in the March 26 robbery and homicide.
Furthermore, our review of the transcript of Fradiue's interview reveals that neither Detective Flores nor Detective Smith used an aggressive, hostile, or threatening tone in questioning Fradiue. To the contrary, the detectives were polite. Although the record shows they repeated questions regarding Fradiue's possible involvement in the March 26 robbery and homicide, the overall approach of the detectives remained relatively low-key and calm.
With respect to the length of the interview, as noted the record shows after about two hours Fradiue was given a 25-minute break. During the initial portion of the interview, the record further shows the detectives mostly talked about subject matters having nothing to do with the charged crimes. And, before taking the break, the detectives asked Fradiue if he was hungry, wanted water or something else to drink, and if needed to use the bathroom. After a 25-minute break, the detectives provided Fradiue with some food and later, cigarettes, after Fradiue became stressed. During the second half of the interview, detectives again asked Fradiue if he needed a bathroom break.
Although the questioning of Fradiue lasted about five and a half hours, the voluntariness inquiry "does not turn on any one fact, no matter how apparently significant, but on the 'totality of circumstances.' " (People v. Neal (2003) 31 Cal.4th 63, 79.) Thus, the ultimate question is not how long Fradiue's interrogation lasted, but whether the circumstances, including the length of the questioning, overwhelmed his free will.
Here, as we have noted Fradiue spoke freely and voluntarily with the detectives. Fradiue also had prior experience in the criminal justice system, as did his family members whom he discussed during the course of the interview, when he suggested to detectives they were chasing the "small fish" instead of the "big fish." Thus, although the questioning of Fradiue lasted over five hours, in light of the various other factors we already have discussed that show his free will was not overwhelmed, we conclude the length of Fradiue's interview alone does not render his confession involuntary. (See Berghuis v. Thompkins (2010) 560 U.S. 370, 387 [noting an interrogation of a defendant in a "straight-backed chair" for three hours was not in and of itself coercive and further noting "even where interrogations of greater duration were held to be improper, they were accompanied, as this one was not, by other facts indicating coercion, such as an incapacitated and sedated suspect, sleep and food deprivation, and threats"]; cf. People v. Alfieri (1979) 95 Cal.App.3d 533, 545-546 [noting a 20-hour interrogation during 36 hours of custody of a 17-year-old suspect with low intelligence and a "highly [suggestive]" psychiatric disorder rendered confession involuntary].)
Considering the totality of the circumstances, we conclude Fradiue's May 9 statement was voluntary. The trial court therefore did not err in admitting Fradiue's statement.
However, even if we assume the "maximum punishment" and similar comments by the detectives constituted an implied promise of leniency, on this record we nonetheless conclude Fradiue has failed to show such comments were the "motivating cause" of his subsequent confession. (See People v. Williams (1997) 16 Cal.4th 635, 661.)
That is, the record shows Fradiue repeatedly stated during the interview that, regardless of whether or not he confessed, he already knew he potentially was facing life in prison (i.e., "I already know where I'm going, I already know come on let[']s go on this little bus"). As such, the record does not substantiate the claim that Fradiue's statement/confession and any alleged promise of leniency were " 'causally linked.' " (See People v. McWhorter (2009) 47 Cal.4th 318, 347 (McWhorter); accord, People v. Carrington (2009) 47 Cal.4th 145, 170-171 (Carrington.)
Along these same lines, the record also shows that, as the interview continued, Fradiue repeatedly suggested to detectives that he had information they could use to take what Fradiue described as a "whole city down" if the detectives in return could "help" him. When the detectives asked Fradiue what "help" he wanted, Fradiue explained that, although he could deal with the consequences if he went back to jail, there were "dudes" in the "yard" "tryin' to rape me, slicing it, slicing me doing all type of damn I'm not gonna deal with that shit . . . my whole life."
Fradiue thus suggested to the detectives that, if he could deliver the "sharks" as opposed to the "little baby fish" like himself, in return all he wanted was the "slight chance . . . [he] could see [his] kids" again and the assurance he and his family would be safe. The record shows that Fradiue then pleaded with the detectives to let him talk to his girlfriend and his kids, as he stated he needed "a lot of help"; that the detectives in return did not promise Fradiue anything, but instead continued to question Fradiue; and that as the questioning continued, Fradiue began to discuss limited details of the involvement of SBC and another criminal street gang in a series of swap meet robberies.
The record shows a short time later, Fradiue, on his own initiative, suggested the detectives call and talk to the "DA" on his behalf. Significantly, in making this request Fradiue recognized that the detectives were not in a position to make him a guarantee, noting: "I know y'all can ' t, I know y'all can ' t cause y'all homicide, y'all detectives y'all—y'all higher than street cops, y'all then Sheriff's, y'all higher than that even y'all higher than that. Y ' all could talk to the DA y ' all could have things going I just want I could, I could help a whole lot more if I just felt that I know it was a guarantee that my family and everything would be safe and they would get t[a]ken care of." (Italics added.) Detective Flores in response told Fradiue he would be willing to "pass on whatever message you want [to give to] the DA," but candidly, that he was "not gonna sit here and promise [Fradiue] anything we can't." Fradiue in response said, "I know."
The above discussion, in which Fradiue recognized it was only the "DA"—and not the detectives who were then interviewing him—who could "help" him and his family and "guarantee" their safety in return for information, further shows that Fradiue's statement/confession was not " 'causally linked' " to any alleged promise of leniency allegedly made by the detectives, whom he believed lacked such authority. (See McWhorter, supra, 47 Cal.4th at p. 347; Carrington, supra, 47 Cal.4th at pp. 170-171.) For this additional reason, we reject Fradiue's contention that his statement/confession was involuntary.
In light of our decision, we decline to address the People's alternate contention that Fradiue forfeited this claim by failing to assert it in the trial court. As such, we also find it unnecessary to address Fradiue's contention that, if this issue was forfeited, he was deprived of effective assistance of counsel.
C. Right to Remain Silent
Fradiue next contends the court erred in refusing to suppress his May 9 statement because about two hours into the interview and after the break, he allegedly invoked his right to remain silent.
1. Additional Background
After the 25-minute break, as noted the detectives confronted Fradiue with evidence that his palm print had been found on the inside door of the swap meet. As already noted, the detectives then suggested to Fradiue that the shooting of Inho had been a "mistake" or an "accident," as opposed to a cold-blooded killing.
The record shows immediately after the detectives confronted Fradiue with the fingerprint evidence, he stated that he could not "help" them and that it was "hard to think right now." After reminding Fradiue that fingerprints are unique to each individual, Detective Smith pointedly asked Fradiue to explain how his palm print was found on the swap meet door if Fradiue allegedly had never been to the swap meet and/or Victorville. The following colloquy then took place:
"Fradiue: I don ' t know that I don ' t know nothin' about that man I'm just gonna leave it like that I ' m done, I ' m not gonna lie to you man
"[Detective] Smith: But you have been lyin' you told me the truth on some things yes I believe that
"Fradiue: I told the truth
"[Detective] Smith: A lot of people told me
"Fradiue: About a lot of things I just
"[Detective] Smith: I agree—I agree
"Fradiue: It's everything man I'm just right now
"[Detective] Smith: But this is the thing
"Fradiue: It's hard
"[Detective] Smith: But it's hard it is very hard
"Fradiue: It's really hard
"[Detective] Smith: Right now you're in a hard situation but what about your kids
"Fradiue: Man
"[Detective] Smith: How you gonna bring your kids up? What are you gonna tell your kids?
"Fradiue: I will tell my kids regardless like you said if this is facts regardless trust me y'all gonna throw away the key if this is true if any of this is true all this if fact y'all gonna throw
"[Detective] Smith: Okay I see what you're saying it's not my job to throw away the key okay[.]" (Italics added.)
Fradiue contends the above-italicized statements he was "gonna leave it like that" and was "done" were an unequivocal invocation of his right to remain silent.
2. Guiding Principles and Analysis
"Whereas the question whether a waiver is knowing and voluntary is directed at an evaluation of the defendant's state of mind" (People v. Williams (2010) 49 Cal.4th 405, 428 (Williams)), evaluating a subsequent "asserted invocation must include a consideration of the communicative aspect of the invocation—what would a listener understand to be the defendant's meaning." (Ibid.) The latter inquiry is an objective one. (Ibid.) Thus, in the postwaiver context such as in the instant case, the "question is not what defendant understood himself [or herself] to be saying, but what a reasonable officer in the circumstances would have understood defendant to be saying." (People v. Gonzalez (2005) 34 Cal.4th 1111, 1126.)
"In order to invoke the Fifth Amendment privilege after it has been waived, and in order to halt police questioning after it has begun, the suspect 'must unambiguously' assert his [or her] right to silence or counsel. (Davis v. United States (1994) 512 U.S. 452, 459 (Davis) italics added.) It is not enough for a reasonable police officer to understand that the suspect might be invoking his [or her] rights. (Ibid.) Faced with an ambiguous or equivocal statement, law enforcement officers are not required under Miranda, supra, 384 U.S. 436, either to ask clarifying questions or to cease questioning altogether. (Davis, supra, 512 U.S. at pp. 459-462.) Of course, such an approach may disadvantage suspects who, for emotional or intellectual reasons, have difficulty expressing themselves. (Id. at p. 460.) However, a rule requiring a clear invocation of rights from someone who has already received and waived them 'avoid[s] difficulties of proof' (id. at p. 458), and promotes 'effective law enforcement.' (Id. at p. 461.)" (People v. Stitely (2005) 35 Cal.4th 514, 535 (Stitely).)
Our high court in Williams also has explained that " '[a] defendant has not invoked his or her right to silence when the defendant's statements were merely expressions of passing frustration or animosity toward the officers, or amounted only to a refusal to discuss a particular subject covered by the questioning.' [Citations.]" (Williams, supra, 49 Cal.4th at p. 433-434.) As such, the Williams court found the defendant had not intended to invoke his right to silence and terminate questioning in the following exchange: "[Officer] Salgado displayed a photograph of the victim to defendant, saying 'this is the woman I'm talking about. How did you meet her?' Defendant answered: 'I don't know that woman.' Salgado countered, 'I'm not saying that you know her. I know you don't know her.' Defendant confirmed: 'I don't know her.' Salgado replied: 'I know you don't know her. She was just someone you met that day.' Defendant repeated: 'I don't know her.' Salgado responded: 'I know you don't know her. I know that. You didn't know her. You didn't know her. I know that. How did you meet her that day?' Defendant responded: 'I don't know.' Salgado persisted: 'What did you do . . . that day with her? Why did . . . it turn [out] the way it did?' Defendant responded: 'I don ' t want to talk about it.' [Italics added.] Salgado said: 'Tell me. David . . .' and defendant interjected: 'I did not know her.' Salgado said again, 'David why did it turn [out] that way?' Defendant again said: 'I did not know her. ' Salgado replied: 'You don't know her, but why did it get that way? Why did she have . . . ' and defendant interjected: 'I don't [sic] what you talk about. I didn't put nobody in no trunk.' He explained that he had nothing to do with the crimes. He continued to respond to questions and to deny all knowledge of or involvement in the crimes." (Id. at p. 433.)
Our high court in Williams concluded: "In our view, the statement italicized above—'I don't want to talk about it'—was an expression of defendant's frustration with Salgado's failure to accept defendant's repeated insistence that he was not acquainted with the victim as proof that he had not encountered her on the night of the crime, rather than an unambiguous invocation of the right to remain silent. [Citations.] A reasonable officer could interpret defendant's statement as comprising part of his denial of any knowledge concerning the crime or the victim, rather than an effort to terminate the interrogation. [Citation.]" (Williams, supra, 49 Cal.4th at p. 434.)
Here, we too consider in context the above-italicized statements by Fradiue. (See People v. Musselwhite (1998) 17 Cal.4th 1216, 1238 [noting whether a suspect has invoked the right to remain silent is " 'a question of fact to be decided in light of all the circumstances' " and further noting that the "words used ' "must be construed in context" ' "].) The record shows that when Fradiue said he was "done," it was in the context of him also saying he was "not gonna lie" to the detectives, after the detectives had been "straight" with him and showed him the fingerprint evidence they obtained from the swap meet door. Our conclusion is supported by the fact that after Fradiue said he was "done," his very next statement to the detectives was, "I told the truth" and thereafter, Fradiue continued to answer the detectives' questions.
As such, on this record we conclude these statements by Fradiue were not an unambiguous assertion of the right to remain silent (see Stitely, supra, 35 Cal.4th at p. 535), but rather was merely an " 'expression[] of passing frustration or animosity toward the officers, or amounted only to a refusal to discuss a particular subject covered by the questioning.' " (See Williams, supra, 49 Cal.4th at pp. 433-434; see also Jennings, supra, 46 Cal.3d at pp. 977-978 [concluding the defendant's statement to questioning police officer, that " 'I'm not going to talk'. . . . 'That's it. I shut up' " reflected "only momentary frustration and animosity" toward one of the officers and was not an invocation of his right to remain silent]; In re Joe R. (1980) 27 Cal.3d 496, 516 [noting in context, defendant's statement, " 'That's all I got to say' " or " 'That's all I want to tell you,' " did not amount to assertion of right to remain silent].)
In light of our decision, we once again decline to address the People's alternate contention that Fradiue forfeited this claim on appeal by his failure to raise it in the trial court or Fradiue's contention that defense counsel's failure to raise it in the trial court deprived him of effective assistance of counsel.
III
Jury Communications involving Court Staff
Fradiue contends the court prejudicially erred in connection with its handling of what he refers to as misconduct by a bailiff in allegedly "interrogat[ing]" a juror to determine if the juror could remain fair and impartial.
A. Additional Background
The record shows at the conclusion of the prosecutor's closing argument and outside the presence of the jury, the court disclosed that Deputy Jason Patrick "advised us that he had spoke[n] to Juror Number 11. Juror Number 11, we were aware, is employed by the, and this is, of course, the blue jury, the juror is employed by the Sheriff's Department as a custody officer or custody specialist, something of that nature, not sworn personnel.
"She was working at, was it West Valley Detention Center or some other location? She has now been transferred to the High Desert Detention Center and her immediate supervisor, I shouldn't say her immediate, one of her supervisors somewhere along the pecking order, is Sergeant Rodriguez who was a witness testifying in this trial.
"What he testified about was the subject recovering the vehicle in Compton, I believe it was, that had been burnt out. He testified to collecting evidence from that burnt out vehicle. Now, Jason [i.e., the bailiff], is it correct that you had asked her in preliminary determination whether this was going to be something that would [a]ffect her ability to be a participant and she said no?
"The Bailiff: She did.
"The Court: Mr. Powell [i.e., Fradiue's attorney], do you want [to] bring her in and ask her anything?
"Mr. Powell: I wanted to make the record that an inquiry was made and she didn't think there was a problem. I think it's okay.
"The Court: Okay. That's fine. Disclosure was made."
B. Guiding Principles and Analysis
Initially, we note the record clearly shows that Fradiue's defense counsel was apprised of this brief interaction between juror number 11 and the bailiff but did not believe "there was a problem." Because defense counsel and the court concluded the court was not then in possession of information which, " ' " 'if proven to be true, would constitute "good cause" to doubt a juror's ability to perform his [or her] duties and would justify his [or her] removal from the case' " ' " (see People v. Cowan (2010) 50 Cal.4th 401, 506); and because, in light of juror number 11's disclosure, substantial evidence supports this conclusion (see People v. Mendoza (2000) 24 Cal.4th 130, 195 (Mendoza) [noting "in resolving a question of whether jury misconduct occurred, we 'accept the trial court's credibility determinations and findings on questions of historical fact if supported by substantial evidence' "]); we conclude Fradiue's contention related to alleged juror/bailiff "misconduct" is forfeited. (See People v. Russell (2010) 50 Cal.4th 1228, 1250.) In any event, we reject this contention on the merits.
"The decision whether to investigate the possibility of juror bias, incompetence, or misconduct—like the ultimate decision to retain or discharge a juror—rests within the sound discretion of the trial court. [Citation.] The court does not abuse its discretion simply because it fails to investigate any and all new information obtained about a juror during trial. [¶] As our cases make clear, a hearing is required only where the court possesses information which, if proven to be true, would constitute 'good cause' to doubt a juror's ability to perform his [or her] duties and would justify his [or her] removal from the case." (People v. Ray (1996) 13 Cal.4th 313, 343; see § 1089 [providing in part: "[i]f at any time, whether before or after the final submission of the case to the jury, a juror dies or becomes ill, or upon other good cause shown to the court is found to be unable to perform his or her duty . . . the court may order the juror to be discharged"].) The decision whether and how to investigate allegations of juror misconduct rests within the trial court's sound discretion. (People v. Engelman (2002) 28 Cal.4th 436, 442.)
Here, we discern no abuse of discretion. Indeed, the record shows that after the evidence had been presented but before jury deliberations began, juror number 11 voluntarily approached the bailiff and disclosed to him the simple fact that she had been transferred to a new detention facility where one of her new supervisors was Sergeant Rodriguez, who was a witness in the case. In hindsight—which is always 20-20—the better approach would have been for the bailiff then to inform the trial court of this disclosure and to allow the court and counsel to determine how to proceed, rather than the bailiff himself asking juror number 11 if she could remain fair and impartial after her transfer.
Fradiue in support of this contention in part relies on section 1128. However, this statute applies when the jury has begun its deliberations, which was not the case here. (See § 1128 [providing in part: "After hearing the charge, the jury may either decide in court or may retire for deliberation. If they do not agree without retiring for deliberation, an officer [i.e., bailiff] shall be sworn to keep them together for deliberation in some private and convenient place, and, during the deliberation, not to permit any person to speak to or communicate with them, including any form of electronic or wireless communication, nor to do so himself or herself, unless by order of the court"].)
Nonetheless, we conclude the court conducted a sufficient inquiry in determining juror number 11 could remain fair and impartial. (See People v. Cleveland (2001) 25 Cal.4th 466, 478.) Despite Fradiue's lengthy argument otherwise, like the trial court (and his trial counsel) we perceive no serious or willful misconduct by either juror number 11 or the bailiff in connection with this limited disclosure issue, which was far from an "interrogation" as Fradiue contends, and certainly no misconduct that affected the deliberations. Because, as noted ante, substantial evidence in the record supports the finding that the court was not then in possession of information that, if proven to be true, would constitute good cause to believe juror number 11 would not or could not properly perform her duty (see Mendoza, supra, 24 Cal.4th at p. 195), we further conclude no hearing was required before that determination was made.
Finally, we reject Fradiue's contention that he was deprived of his constitutional right to be present when the bailiff spoke to juror number 11 and asked her if she could remain fair and impartial after her transfer.
First, we note neither Fradiue nor defense counsel raised this specific objection in the trial court. "[B]ecause he failed to raise an objection on this ground at trial," the issue is forfeited on appeal. (People v. Moon (2005) 37 Cal.4th 1, 21.)
Second, assuming a specific objection had been made, we independently conclude Fradiue was not denied his constitutional and statutory right to be present during the brief exchange between juror number 11 and the bailiff. Our high court in People v. Perry (2006) 38 Cal.4th 302, 311-312 (Perry) addressed these rights as follows: " '[A] defendant has a federal constitutional right, emanating from the confrontation clause of the Sixth Amendment and the due process clause of the Fourteenth Amendment, to be present at any stage of the criminal proceedings "that is critical to its outcome if his [or her] presence would contribute to the fairness of the procedure." [Citations.] In addition, a defendant has the right to be personally present at critical proceedings, pursuant to the state Constitution [citations], as well as pursuant to statute [citations].' [Citations.] 'An appellate court applies the independent or de novo standard of review to a trial court's exclusion of a criminal defendant from trial, either in whole or in part, insofar as the trial court's decision entails a measure of the facts against the law.' [Citation.] Erroneous exclusion of the defendant is not structural error that is reversible per se, but trial error that is reversible only if the defendant proves prejudice. (Rushen v. Spain (1983) 464 U.S. 114, 118-119, People v. Bradford [(1997)] 15 Cal.4th [1229,] 1357 [(Bradford)].)
"Under the decisions cited above, a defendant's right to be present depends on two conditions: (1) the proceeding is critical to the outcome of the case, and (2) the defendant's presence would contribute to the fairness of the proceeding. (See Kentucky v. Stincer [(1987)] 482 U.S. 730; Bradford, supra, 15 Cal.4th 1229, 1356-1357.) Thus, a defendant may ordinarily be excluded from conferences on questions of law, even if those questions are critical to the outcome of the case, because the defendant's presence would not contribute to the fairness of the proceeding. Examples include the exclusion of a defendant from a conference on the competency of child witnesses (Kentucky v. Stincer, supra, 482 U.S. 730), a conference on whether to remove a juror (Rushen v. Spain, supra, 464 U.S. 114), and a conference on jury instructions (People v. Morris (1991) 53 Cal.3d 152, 210). And there is no error in excluding a defendant from routine procedural discussions on matters that do not affect the outcome of the trial, such as when to resume proceedings after a recess. (See, e.g., People v. Hines (1997) 15 Cal.4th 997, 1039-1040.)"
In the instant case, we independently conclude Fradiue was not entitled to be present during the brief conversation between juror number 11 and the bailiff because this conversation neither constituted a critical stage of the proceedings nor would his presence during it contribute to the fairness of the proceeding. (See Perry, supra, 38 Cal.4th at pp. 311-312.) As noted ante, this short conversation took place after the evidence had been presented and before deliberations began. As further noted ante, the conversation involved a simple disclosure by juror number 11, who voluntarily came forward and spoke to the bailiff, and a follow up question by the bailiff in response, all of which was disclosed to the court and the parties.
What's more, Fradiue was present in the courtroom when the court disclosed the conversation between juror number 11 and the bailiff. The record shows the parties were offered an opportunity to question juror 11 further on the matter, but declined. Thus, Fradiue then was afforded ample opportunity to raise any issue or concern he had regarding the conversation between juror number 11 and the bailiff. (See People v. Cole (2004) 33 Cal.4th 1158, 1232 [noting the defendant was not denied the right to be present during pretrial proceedings for a continuance because the defendant's presence "would not have enhanced the case for a continuance" and because "when defendant arrived during the in-court hearing, the court summarized that it was currently hearing a defense continuance motion" and "defendant could have given the court or counsel any information he had at that time . . . [b]ut he did not].)"
As such, we also conclude Fradiue cannot show that his absence during this short conversation prejudiced his case. (See Perry, supra, 38 Cal.4th at p. 312 [noting "[e]rroneous exclusion of the defendant is not structural error that is reversible per se"]; see also People v Benavides (2005) 35 Cal.4th 69, 89 [rejecting the contention defendant was denied the right to be present at a critical stage of the case when the prosecutor and defense counsel stipulated to the excusal of eight prospective jurors because the defendant "fail[ed] to show that his presence would have served a purpose"].)
IV
Sufficiency of the Evidence of the "Primary Activities" of SBC
Fradiue, joined by Walker, contends the testimony of the People's gang expert was insufficient to prove the primary activities of SBC included committing crimes listed in section 186.22, subdivision (e). Specifically, Fradiue contends the expert's testimony was insufficient to show that the commission of one or more statutorily enumerated crimes was one of SBC's chief or principal activities. He also contends the gang expert lacked an adequate factual basis for his testimony concerning SBC's primary activities.
Walker states that, at his trial, Detective Sumner's testimony "was in large part identical" to the testimony challenged by Fradiue. (Italics added.) Because Walker joined in and incorporated Fradiue's contention(s) on this issue (see rule 8.200, subd. (a)(5)), our discussion and resolution of this issue with respect to Fradiue also applies to Walker.
A. Additional Background
Joseph Sumner testified that since 2007, he has been a gang investigator assigned to the Operation Safe Streets Bureau for the Los Angeles County Sherriff's Department (bureau); and that from 2002 until 2014, he worked out of the Compton station, including as a patrol officer before 2007. Detective Sumner estimated that while working patrol in Compton, he personally contacted about 15 to 30 gang members a day; that as a result, he learned about Compton gangs including SBC and about each gang's allies and enemies; and that over time, he got to know several gang members and, in some cases, was able to develop informants.
Detective Sumner generally testified about various subject matters concerning gangs, including how an individual typically joins a gang; why gangs use monikers; the different status levels of certain members within a gang; and why respect is so important to a gang. Detective Sumner noted a gang wants to be feared and uses its name to intimidate the public so that people will be apprehensive to report crimes committed by the gang or to cooperate with law enforcement to solve those crimes.
Detective Sumner testified that he was "very" familiar with SBC; that over the years while working patrol, he had "numerous contacts" with SBC gang members; and that SBC had been around since the early 1970's and was one of the largest Crip gangs in the area. While working out of the Compton station, Detective Sumner stated he had "numerous occasions" to investigate crimes committed by SBC gang members. Such crimes included "basic petty theft to burglary, robbery, assaults, weapons possessions, weapon sales, narcotic sales and had even assisted homicide with some of the murders in the area."
Detective Sumner testified the primary rival of SBC to date had been the South Side Crips gang. According to Detective Sumner, those two gangs "had an ongoing war for several years, numerous shootings, numerous murders back and forth." In addition to the South Side Crips gang, Detective Sumner noted SBC rivaled with Hispanic gangs in Compton and with the "Piru gangs," which he described as "Blood gangs" who wore red.
Detective Sumner opined that members of SBC "either individually or collectively" have "engaged in a pattern of criminal gang activity." He also opined as follows concerning the primary activities of SBC: "Everything between petty theft, burglary, robbery, narcotic sales, weapon sales, weapons possession, narcotics possession, prostitution, murder, assaults." (Italics added.) Detective Sumner opined these same crimes also established a pattern of criminal activity with respect to SBC.
Next, Detective Sumner described a crime listed in subdivision (e) of section 186.22 committed by SBC gang member Tennell Billups, a seven-year veteran of the gang. Billiups, who went by the moniker "White Boy," in April 2011 committed an offense that included two counts of burglary. Detective Sumner on behalf of the bureau was personally involved in the containment and the investigation of this crime, which also led to the shooting of a sheriff deputy. According to Detective Sumner, Billups was convicted in August 2012 of both burglary counts and of resisting an executive officer.
Detective Sumner also described a crime committed by SBC gang member Tashman Williams, who went by the moniker "Taz" or "Big Taz." Specifically, Detective Sumner testified he and his partner conducted a parole search of Williams's house on April 26, 2011, and found Williams, a felon, in possession of a gun, which offense led to Williams's conviction.
Finally, Detective Sumner testified Fradiue, Walker and Rollins were members of SBC. As relevant here, Detective Sumner based his opinion that Fradiue was an SBC gang member on personal contacts he had made with Fradiue in SBC gang territory among other information.
Detective Sumner testified he knew Walker was a member of SBC because Walker himself admitted as much to Detective Sumner. Detective Sumner also came to learn that Walker was an SBC gang member based on his personal contacts with Walker among other information.
B. Guiding Principles
The gang substantive offense (§ 186.22, subd. (a); count 3), gang enhancements (§ 186.22, subd. (b)), gang-murder special circumstance (§ 190.2, subd. (a)(22)), and vicarious firearm enhancements (§ 12022.53, subd. (e)(1)) alleged and found true all required proof of the existence of a gang's "primary activities" among other elements. We apply a substantial evidence standard of review, which we note also applies to convictions and enhancement allegations (Hajek, supra, 58 Cal.4th at p. 1197; People v. Garcia (2014) 224 Cal.App.4th 519, 522-523) and to special circumstances (People v. Booker (2011) 51 Cal.4th 141, 172).
The Street Terrorism Enforcement and Prevention Act (Stats. 1998, ch. 1242, § 1, pp. 4127-4129) defines a criminal street gang as " 'any ongoing organization, association, or group of three or more persons, whether formal or informal' that has as one of its 'primary activities' the commission of one or more statutorily enumerated criminal offenses and through its members engages in a 'pattern of criminal gang activity.' (§ 186.22, subd. (f).)" (People v. Sengpadychith (2001) 26 Cal.4th 316, 319-320 (Sengpadychith).) A gang engages in a "pattern of criminal gang activity" when its members participate in two or more specified criminal offenses (the so-called predicate offenses) that are committed within a certain time frame and on separate occasions, or by two or more persons. (§ 186.22, subd. (e).) "Thus, for a group to fall within the statutory definition of a 'criminal street gang,' these requirements must be met: (1) the group must be an ongoing association of three or more persons sharing a common name or common identifying sign or symbol; (2) one of the group's primary activities must be the commission of one of the specified predicate offenses; and (3) the group's members must 'engage in or have engaged in a pattern of criminal gang activity.' [Citations.]" (People v. Loeun (1997) 17 Cal.4th 1, 8.) (Original capitalization omitted.)
Primarily at issue here is the "primary activities" requirement.
"The phrase 'primary activities,' as used in the gang statute, implies that the commission of one or more of the statutorily enumerated crimes is one of the group's 'chief' or 'principal' occupations. [Citation.] That definition would necessarily exclude the occasional commission of those crimes by the group's members. . . . [¶] Sufficient proof of the gang's primary activities might consist of evidence that the group's members consistently and repeatedly have committed criminal activity listed in the gang statute." (Sengpadychith, supra, 26 Cal.4th at pp. 323-324; see People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez).)
A gang's primary activities can be established through expert testimony. (Sengpadychith, supra, 26 Cal.4th at pp. 323-324.) Here, as noted, Detective Sumner in response to the prosecutor's question what are the "primary activities" of SBC? stated: "Everything between petty theft, burglary, robbery, narcotics sales, weapon sales, weapons possession, narcotics possession, prostitution, murder, assaults." (Italics added.)
C. Analysis
Fradiue contends that Detective Sumner's "[e]verything between" statement "defies reliable interpretation" and that Detective Sumner did not testify these crimes were the "primary activities" of SBC. Fradiue contends, therefore, that Detective Sumner's testimony is insufficient evidence of SBC's primary activities.
A similar contention was made in People v. Margarejo (2008) 162 Cal.App.4th 102 (Margarejo).) In that case, the prosecutor asked the gang expert, " '[W]hat are the primary activities of the Highland Park criminal street gang?[' ]" And the expert responded, " 'Their activities range from simple vandalism and battery, and can extend all the way to murder. They also include consolidated weapons, carjackings, robberies and a lot of narcotic related offenses.' " (Id. at p. 107.)
The defendant in Margarejo argued that the expert's testimony was insufficient to support the "primary activities" element because the expert "left out the word 'primary' in front of the word 'activities.' " (Margarejo, supra, 162 Cal.App.4th at p. 107.) The Margarejo court disagreed, stating that, although the attorney's question was not evidence, "the question's wording typically is relevant to a reasonable interpretation of the witness's answer. Often it is vital to consider the question to understand anything about the answer, as with answers like 'yes.' " (Ibid.) The jury, the Margarejo court explained, "had ample reason to infer that [the expert's] answer implicitly incorporated the word 'primary' from the question. Ordinary human communication often is flowing and contextual. Jurors know this. Repetitive and stilted responses make up one kind of direct examination, but not the only kind. [The defendant's] objection here calls for an unreasonably restrictive interpretation of [the expert's] answer, which we respectfully decline." (Ibid.)
Margarejo informs our decision. The record in the instant case shows the prosecutor specifically asked Detective Sumner to describe the primary activities of SBC, to which he immediately responded "[e]verything between" and then listed a series of crimes including burglary, robbery and murder. We conclude a reasonable jury would understand that Detective Sumner's response "implicitly incorporated" the word " 'primary activity' from the question" asked by the prosecutor. (See Margarejo, supra, 162 Cal.App.4th at p. 107.)
Moreover, we note in Margarejo the expert also used the phrases "range from" and "can extend all the way to" in describing the activities of the gang in that case. (See Margarejo, supra, 162 Cal.App.4th at p. 107.) Such phrases are not unlike the phrase "[e]verything between" used by Detective Sumner in the instant case in describing the primary activities of SBC. Like the jury in Margarejo, we conclude the jury here in the instant case would reasonably understand the expert's answer in the context of the prosecutor's question as referring to the gang's "primary activities." As such, we further conclude Detective Sumner's testimony was sufficient to support the jury's finding that SBC's primary activities included the commission of one or more crimes enumerated in section 186.22, subdivision (e).
Fradiue also contends there was an insufficient foundation for Detective Sumner's testimony regarding SBC's primary activities. Initially, we note this claim was not preserved for appeal because Fradiue did not object to the challenged testimony on foundational grounds. (See People v. Clark (2016) 63 Cal.4th 522, 603 [noting the defendant's "failure to object on [a] specific ground [i.e., testimony violated attorney-client privilege] below forfeits his claim on appeal"].)
Assuming such a specific objection was made, we nonetheless conclude the evidence summarized ante is more than sufficient to provide a factual foundation for Detective Sumner's expert opinion concerning SBC's primary activities. The case of People v. Martinez (2008) 158 Cal.App.4th 1324 (Martinez) informs our decision on this issue.
In Martinez, much like Detective Sumner here, the gang expert was familiar with the defendant's gang "based on regular investigations of its activity and interaction with its members." (Martinez, supra, 158 Cal.App.4th at p. 1330.) The gang expert in Martinez testified that the gang's primary activities included "robbery, assault—including assaults with weapons, theft, and vandalism," and he testified about two prior gang offenses, both robberies, which had occurred in separate years. (Ibid.) The Martinez court held that the gang expert's testimony was sufficient "to prove the gang's primary activities fell within the statute." (Ibid.)
Here, the record shows that between 2002 and 2014, Detective Sumner worked out of the Compton police station; that until he joined the bureau in 2007, he worked for many years as a patrol officer in Compton; that while working patrol in Compton, he personally contacted about 15 to 30 gang members each day; that as a result, he became "very" familiar with SBC; that while working out of the Compton station until 2014, he personally investigated on "numerous occasions" crimes committed by SBC gang members; and that such crimes included the specified predicate offenses in subdivision (e) of section 186.22 including burglary, robbery and murder.
Because Detective Sumner was "very" familiar with SBC based on his own numerous investigations of, and his multiple interactions with, SBC gang members over the span of many years both while a patrol officer in Compton and while working for the bureau, we conclude there was a sufficient factual foundation for his testimony regarding SBC's primary activities. (See Martinez, supra, 158 Cal.App.4th at p. 1330; compare In re Alexander L. (2007) 149 Cal.App.4th 605, 611-612 [noting gang expert's testimony that he knew that the minor's gang had " 'committed quite a few assaults with a deadly weapon, several assaults,' " and that they had been " 'involved in murders' " as well as " 'auto thefts, auto/vehicle burglaries, felony graffiti, narcotic violations' " did not constitute substantial evidence because the expert did not give "specifics" as to the circumstances of any crimes, nor had he explained "where, when, or how [he] had obtained the information"].)
Because Detective Sumner was personally familiar with the primary activities of SBC and because he also was personally involved in the investigation of the specified predicate offenses that established the "pattern of criminal gang activity" of SBC, we conclude his testimony was not inadmissible under Sanchez, supra, 63 Cal.4th 665. There, in contrast to the instant case, our high court concluded the trial court erred in allowing a gang expert to testify about the defendant's prior contacts with law enforcement, about which the expert had no personal knowledge, in opining that the defendant was a member of a criminal street gang and his possession of drugs and a firearm benefited the gang. (Id. at 696-700.)
V
Inclusion of a Nonqualifying Crime as a Potential Primary Activity of SBC
Fradiue, joined by Walker, contends the jury instruction on street terrorism erroneously included a nonqualifying crime as one of SBC's primary activities.
Because Walker once again has joined in and incorporated Fradiue's contention(s) of instructional error (see rule 8.200, subd. (a)(5)), our discussion and resolution of this issue with respect to Fradiue also applies to Walker.
The court identically, albeit separately, instructed the Fradiue and Walker juries in pertinent part as follows on the definition of a criminal street gang:
"A criminal street gang is any ongoing organization, association, or group of three or more persons, whether formal or informal:
". . .
"2. That has, as one or more of its primary activities, the commission of ROBBERY, MURDER, ATTEMPTED MURDER, BURGLARY, NARCOTICS SALES, ASSUALT WITH A FIREARM, POSSESSION OF A FIREARM . . . ."
Fradiue contends that only certain kinds of firearm possession are qualifying activities. Specifically, there are four qualifying firearm possession offenses listed in the gang statute: possession of a concealable firearm (§186.22, subd. (e)(23)); possession of a firearm by a felon or drug addict (id. subd. (e)(31)); carrying a concealed firearm (id. subd. (e)(32)); and carrying a loaded firearm (id. subd. (e)(33)). Fradiue thus contends the lack of specificity in connection with the "possession of a firearm" portion of the instruction rendered the instruction legally incorrect and constituted prejudicial error because it allowed the jury to rely potentially on nonqualifying crimes to establish the pattern of criminal gang activity element.
The People contend that Fradiue's failure to object to the jury instruction at issue results in a forfeiture of this claim. " ' "[A] party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language." ' " (People v. Catlin (2001) 26 Cal.4th 81, 149.) Because the "possession of firearm" portion of the instruction was too general, as opposed to being legally incorrect, we conclude Fradiue forfeited this claim by failing to raise it in the trial court.
However, assuming Fradiue (and Walker) had specifically objected to this portion of the instruction, we nonetheless conclude the error was harmless. As summarized ante, there is no foundational evidence that SBC members engaged in any weapons possession offenses that were not enumerated in subdivision (e) of section 186.22; rather, the only evidence of weapons possession in the instant case related solely to SBC gang member Williams, who was convicted of being a felon in possession of a firearm, which is a qualifying offense. (See § 186.22, subd. (e)(31).) As such, we conclude any alleged instructional error was harmless beyond a reasonable doubt. (See People v. Bragg (2008) 161 Cal.App.4th 1385, 1401, citing Sengpadychith, supra, 26 Cal.4th at pp. 324, 326-327; see also People v. Butler (2010) 187 Cal.App.4th 998, 1013 [noting a reviewing court evaluates a claim of instructional error by inquiring whether there is a reasonable likelihood the jury applied the instructions in an erroneous manner].)
VI
Sufficiency of the Evidence to Support Gang Enhancement Finding
Walker contends there is insufficient evidence in the record to support as to him the gang enhancement true finding that the robbery of the swap meet jewelry store benefitted SBC. (See § 186.22, subd. (b)(1).)
A. Additional Background
Detective Sumner testified in Walker's trial that SBC has been a criminal street gang since the early 1970's; that at all times relevant, SBC had about 200 gang members; that he worked in SBC territory in Compton between 2002 and 2014; that while working in SBC territory, he contacted SBC members "daily"; that he personally investigated "numerous" crimes committed by SBC gang members, including "petty theft, burglary, robbery, weapon possession, narcotic possession, prostitution, assault with a firearm, murders, car thefts, narcotic sales"; that SBC had common signs and symbols; that SBC had a large and ever-growing territory in which it primarily operated; and that SBC members engaged in a "pattern of criminal conduct" including the "primary activities" of "murder, burglary, robbery, weapon sales [and] narcotic sales."
See footnote 5, ante.
As was the case in the Fradiue trial, Detective Sumner testified in the Walker trial that he was familiar with SBC gang member Tennell Billups, who went by the moniker "White Boy," inasmuch as Detective Sumner had myriad contacts with Billups including on April 4, 2011, when Billups committed a burglary that led to a "shooting [of] a deputy"; and that Detective Sumner personally participated in the "containment" on April 4 and was also personally involved in the investigation of that crime.
Detective Sumner further testified he was familiar with SBC gang member Tashman Williams, who went by the moniker "Tash"; that on April 26, 2011, Detective Sumner and other law enforcement went to Williams' house and found him in possession of a firearm; and that Detective Sumner was also personally involved in that investigation, which led to the conviction of Williams for being a felon in possession of a firearm.
Detective Sumner also testified that he was contacted by investigators from the San Bernardino County Sheriff's Department following the swap meet robbery and shooting; that he was shown a still photo taken from a surveillance video; that he "immediately" recognized the individual in the photograph as Walker; that he personally knew Walker as a result of making at least six contacts with Walker; that Walker was an SBC gang member; and that the basis of his opinion Walker was an SBC gang member was his multiple "contacts" with Walker and Walker's "self-admittal." (Italics added.)
Detective Sumner provided similar testimony with respect to Fradiue and Rollins, noting both Fradiue and Rollins admitted during his contacts with them that each was an SBC gang member.
B. Guiding Principles and Analysis
The gang enhancement "requires that the crime be committed (1) for the benefit of, (2) at the direction of, or (3) in association with a gang." (People v. Morales (2003) 112 Cal.App.4th 1176, 1198, italics in original; see also § 186.22. subd. (b)(1).) Because this element "is worded in the disjunctive, a gang enhancement may be imposed without evidence of any benefit to the gang so long as the crime was committed in association with or at the direction of another gang member." (People v. Weddington (2016) 246 Cal.App.4th 468, 484 (Weddington).)
People v. Albillar (2010) 51 Cal.4th 47 (Albillar) informs our decision. There, our high court found there was sufficient evidence the perpetrators came together as gang members to commit a crime. (Id. at p. 62.) The court observed that not only had the gang members "actively assisted each other in committing these crimes, but their common gang membership ensured that they could rely on each other's cooperation in committing these crimes and that they would benefit from committing them together." (Ibid.)
Likewise, the record here shows Fradiue, Walker and Rollins were all part of the same gang—SBC, as established by the testimony of Detective Sumner who had personal knowledge of each such individual and each's affiliation with SBC. The evidence in the record also shows that Fradiue, Walker and Rollins, along with one or more unidentified African American males, together went to Victorville to commit the "smash-and-grab" robbery of the jewelry store; and that their attack was coordinated.
Indeed, the record shows that they entered the swap meet from separate entrances; that once inside, Walker and Rollins each used a hammer with the notation "Genuine American Hickory" on its handle to smash the glass cases of the jewelry store; and that as Walker and Rollins smashed the glass cases, Fradiue and the unidentified male stood by, armed with guns, to facilitate the robbery.
We thus conclude there is more than sufficient evidence in the record to support the true finding that Walker committed the robbery in "association" with a gang. (See Albillar, supra, 51 Cal.4th at p. 62; Weddington, supra, 246 Cal.App.4th at p. 484; see also People v. Leon (2016) 243 Cal.App.4th 1003, 1021 [noting a "trier of fact can rationally infer a crime was committed 'in association' with a criminal street gang within the meaning of section 186.22, subdivision (b) if the defendant committed the offense in concert with gang members"].)
Moreover, because substantial evidence establishes that Walker intended to and did commit the robbery of the swap meet jewelry store with other known SBC gang members, "the jury may fairly infer that [Walker] had the specific intent to promote, further, or assist criminal conduct by those gang members." (See Albillar, supra, 51 Cal.4th at p. 68; see also People v. Villalobos (2006) 145 Cal.App.4th 310, 322 [committing crime in concert with known gang members constitutes substantial evidence the defendant acted with the specific intent to promote, further or assist gang members in the commission of crime].) We thus reject Walker's contention there was insufficient evidence in the record to support the gang enhancement true finding as to him.
In light of our conclusion, we need not address Walker's contention that the evidence in the record was insufficient to support the finding that the commission of the robbery "benefited" the SBC gang. (See § 186.22, subd. (b)(1).)
VII
Sentencing
Fradiue, joined by Walker, contends the court erred in not staying under section 654, subdivision (a) his sentence on counts 2 and 3 because he already was punished for this same conduct in count 1.
Walker also joined in and incorporated Fradiue's contention(s) on this sentencing issue. (See rule 8.200, subd. (a)(5).)
Section 654, subdivision (a) provides that the same act or omission shall not be punished under more than one provision of law. (§ 654, subd. (a).)
As noted ante, Fradiue and Walker were each convicted of first degree murder in count 1 and the jury found true as to each of them the robbery/felony murder and gang-murder special circumstances, resulting in a sentence of life in prison without the possibility of parole. Fradiue and Walker were also separately convicted of the substantive crimes of robbery in count 2 and active participation in a street gang in count 3. As to count 2, the court imposed on each defendant a consecutive five-year term and as to count 3, a consecutive term of eight months.
As noted ante, we have reversed the gang-murder special circumstance true finding as to Walker. (See § 190.2, subd. (a)(22.)) --------
Relying on People v. Hensley (2014) 59 Cal.4th 788, 828 (Hensley) and People v. Montes (2014) 58 Cal.4th 809, 898 (Montes), Fradiue contends his sentence on counts 2 and 3 should have been stayed because these two felonies were based on the same facts as count 1 and were used as predicate felonies for the theory of felony murder in connection with count 1, for which he received life in prison without the possibility of parole.
Relying on People v. Mesa (2012) 54 Cal.4th 191, 200-201 (Mesa), the People contend that only the sentence on count 3 should be stayed because the felonies underlying the active gang participation charge in that count were separately charged in count 1 (murder) and in count 2 (robbery).
We conclude as to each defendant that punishment on counts 2 and 3 should have been stayed. Turning first to count 2, the record shows that as to each defendant, the only robbery at issue was the robbery of the swap meet jewelry store, which charge was the basis for each defendant's felony murder conviction. The record further shows that the prosecutor expressly relied on felony murder to support each defendant's murder conviction and that each defendant's jury specifically found the murder of Inho was committed by each defendant while he was "engaged in the commission of the crime of [r]obbery."
As such, we conclude under Hensley and Montes the court should have stayed punishment on count 2 for each defendant. (See also People v. Meredith (1981) 29 Cal.3d 682, 695-696 [concluding conviction of, but not punishment for, both felony murder and the related robbery was proper]; People v. Boyd (1990) 222 Cal.App.3d 541, 575-576 [concluding robbery sentence stayed under section 654, subdivision (a) where robbery was crime underlying first degree felony murder conviction].)
A similar analysis applies to count 3, active gang participation. (§ 186.22, subd. (a).) Because the underlying felonies of murder and robbery were also used to satisfy an element of the gang participation offense, the sentence under count 3 should have been stayed as to each defendant. (See Mesa, supra, 54 Cal.4th at pp. 197-198 [noting " 'section 654 precludes multiple punishment for both (1) gang participation, one element of which requires that the defendant have "willfully promote[d], further[ed], or assist[ed] in any felonious criminal conduct by members of th[e] gang," [citation] and (2) the underlying felony that is used to satisfy this element of gang participation' "].)
DISPOSITION
As to Fradiue, the judgment of conviction is modified to stay under section 654, subdivision (a) his sentence on counts 2 (robbery) and 3 (active gang participation).
As to Walker, the judgment of conviction is modified to reverse the true finding only on the gang-murder special circumstance under section 190.2, subdivision (a)(22) and to stay under section 654, subdivision (a) his sentence on counts 2 (robbery) and 3 (active gang participation).
As modified, the judgments of conviction of each defendant are affirmed. The clerk of the superior court is directed to prepare for each defendant an amended abstract of judgment reflecting these modifications and to forward certified copies of the amended abstracts to the Department of Corrections and Rehabilitation.
BENKE, J. WE CONCUR: McCONNELL, P. J. HALLER, J.