Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06F05635
RAYE, Acting P. J.No one identified defendant Jeffrey Ward, a Caucasian, as the shooter in a drive-by killing of a young Russian by a multiethnic subset of the Sacramento Bloods criminal street gang. Nevertheless, a jury convicted him of first degree murder with special circumstances, based on compelling circumstantial evidence and his admission he shot the victim. Forensic evidence supported the prosecution’s theory that the driver of defendant’s 1991 Mercedes fired the fatal shot. On appeal, he challenges the sufficiency of the evidence, the adequacy of the jury instructions, and the admissibility of gang-related evidence. He also asserts the mistrial on the personal use of a firearm allegation precludes retrial. We accept the Attorney General’s concession that the parole revocation fine must be reversed, and in all other respects, we affirm the judgment.
FACTS
The Sacramento Bloods may have integrated, but respect, revenge, and violence remain central to their corporate ethos. As this case vividly demonstrates, multiculturalism does not mean peace and harmony.
In fact, defendant may have been both a progressive and a reactionary at the same time. In June 2006 he had opened his duplex to an eclectic group of cohabitants, including Bernadette Poulin, her husband, Kerry Locke, and their three young children; the children’s deaf grandmother; and a Bloods gang member and his girlfriend, Lupe. At the same time, he kept double barreled, sawed-off shotguns in a wall of his duplex. On the night of June 23, 2006, he hosted a raucous get-together at the duplex before leaving in the early morning hours for a park in Antelope.
Poulin testified that around 11:30 p.m., defendant arrived with Roo; his Hispanic roommate Lupe; Rory Vaughn, a white friend with glasses; and Raymond Walker, an African-American. As the group partied, Poulin retreated to her bedroom with her two- and four-year-old sons; her six-year-old daughter shared a room with her grandma. She heard the shotgun go off in the living room, but when she went out to investigate, she was told to go back into her bedroom. Poulin saw defendant put a shotgun into a green duffel bag before he left. After the partygoers were gone, she saw a hole inside the entertainment center in the living room. She checked on grandma and her daughter, and went back to her room with her boys.
Luvy Sehmbi should have trusted her instincts. Apparently she had a wide and diverse social circle, but she worried about the potential for danger in bringing two groups of male friends together. As she put it, there just might be too much testosterone for everyone’s safety. But by 2:00 a.m. on June 24 she was drunk, and setting aside her better judgment, she told one of her Russian friends, Stan Serikov, that she and her friends could join him at a park and provide some marijuana. By then, Sehmbi had collected an assortment of friends and acquaintances, girls and guys, whites, blacks, Hispanics, and a Muslim. They met the Russians just outside the park as a security guard had asked the Russians to leave.
Eyewitness accounts agreed on the broad outlines of what happened next. Serikov and the eventual victim, Serge Zubenko, were riding in Zubenko’s BMW convertible. They left shortly after Sehmbi’s entourage arrived and went to steal beer and obtain a “swisher” to roll the marijuana. While they were gone, introductions began. Walker, a tall African-American, shook hands with Dimitry Myalik and Dmitry Kozlov. Walker, who had gotten out of the car making gang-related remarks like “Salinas Blood Killers” or “San something Bloods, ” asked “Do you bang?” Kozlov and Myalik responded that they were Russian and they did not bang. When Myalik shook Walker’s hand, he ended up with some gel or grease on his hand and wiped it on Walker’s shirt. A fight ensued.
Eyewitness accounts diverge after the fight began. One witness saw a white male “doing something at the trunk” of one of the cars. Sehmbi tried to intervene. Unsuccessful, she began to walk away. Alex Derevyanchuk, who had come with Myalik, called Serikov and told him what was happening. Serikov and Zubenko arrived back at the park just as the crowd was dispersing. They sat parked in Zubenko’s BMW. Sehmbi, Kozlov, Myalik, and Derevyanchuk approached the BMW.
Almost everyone agreed that a tall African-American with cornrows, wearing a white jersey, jumped into a black Mercedes and was standing on the door frame with the door open shouting something about “respect” and “Bloods.” Several witnesses testified they could see his hands and he was not holding a gun. Some identified the African-American as Walker. Myalik identified defendant as a white male who had arrived in the Mercedes. He told police on the day of the shooting that he believed the shooter was the African-American wearing a jersey with whom he had fought. Sehmbi testified that a white male was driving.
According to the Russians, the Mercedes drove toward the BMW at about 5 to 10 miles per hour. Serikov sensed danger and ducked. Zubenko did not. The Mercedes pulled within a few feet of the BMW and everyone heard a shot. Several witnesses testified it came from the Mercedes. Sehmbi, in a videotaped interview, stated somebody in the front seat fired the shot. Some witnesses testified the African-American was riding on the driver’s side; another said he was on the passenger side. One witness told police there were five African-Americans in the Mercedes, and both the driver and the shooter were black. Another testified that the driver was white. No one, as we stated at the outset, saw who shot Serge Zubenko.
Shortly after the witnesses heard the shot, Zubenko opened the door of the BMW, stepped out of the vehicle, said he had been shot, and fell to the ground. Some of his friends tried to stop the bleeding. Serikov, however, hid the stolen beer in the trunk of another car and ran off. Zubenko died of shotgun wounds to the left arm and torso.
At about 2:00 or 2:30 a.m., defendant came into Poulin’s bedroom with the gun in his hand. According to Poulin, defendant woke her up and told her “he might have shot somebody, and that he might be going to jail.” In one interview, she told an investigating detective that defendant had bragged about the shooting and stated that the victim had “got what he deserved.” When Poulin awoke in the morning, Roo, Lupe, Vaughn, Walker, and defendant were in the house. She called Locke, who had spent the night with his brother, to come and pick her up. Defendant told Locke that he might have shot someone. Locke had seen defendant with two sawed off, double-barreled shotguns.
The police searched defendant’s residence the following day. In one of the bedrooms, they found a registration and a bill of sale transferring title to a 1991 Mercedes to defendant. They found an expended 12-gauge shotgun shell, a box of Remington 12-gauge slugs, and various 12-gauge and 20-gauge shells. A firearms specialist opined that the victim could have been shot with a 12-gauge slug, and the slug could have come from the empty box and the expended shell in defendant’s bedroom. Other items found in the bedroom and foyer closet included an empty bottle of Hennessey, a white National Football League jersey, a red hat with the area code 916 on the front, and several items of red clothing, including a red sweatshirt and a red Michael Jordan jersey.
Poulin testified that after the search was completed, she found a 20-gauge shotgun at the bottom of a container filled with clothing. She notified the police. Later, in the trunk of defendant’s black Mercedes, police found a green duffel bag similar to the one into which Poulin had seen defendant place a shotgun. Because there was no gun residue found inside the Mercedes, the criminalist opined that the shotgun muzzle must have been fired from outside an open door or window.
A gang expert provided the usual explanation of gang psychology and sociology. He characterized Sacramento as a “Blood town” with numerous multiethnic subsets. Although they all identify with the color red, there has been sporadic violence between the sets. He opined that many of the items seized in the search of defendant’s room could be associated with a Blood gang, including a photograph of defendant making gang hand signs; a hat with Sacramento’s area code, 916; and an envelope with 916 and the initials DPH, referring to Del Paso Heights, a Blood subset. He also explained that drive-by shootings are a means of instilling fear in a community. Gang members often used sawed-off shotguns because they are easy to conceal. Calling out a gang name in connection with a crime is done to let others know which gang is responsible for the crime.
Defendant’s sister testified that Poulin told her she had lied to the police because she was afraid she would lose her children. The sister did not report Poulin’s admission until almost two years after the murder. The prosecution played a videotape of Poulin’s interview with the police to rebut the sister’s allegation that Poulin told her she had been coerced into telling them what they wanted to hear.
DISCUSSION
I
Sufficiency of the Evidence
Defendant contends there is insufficient evidence he intended to shoot at the victim, rather than at the car. Mistaking us for the jury, he reargues the inferences that might have been drawn from the eyewitness accounts of what happened. He insists that the victim was an easy mark, sitting in a convertible with the top off and the windows down, and since he was in close range the shooter could have easily shot the victim in the head, neck, or shoulder had he intended to kill him. Instead, he shot at the door. Thus, in his version there was insufficient evidence of the requisite intent to kill. Not so.
The scope of appellate review of a claim of insufficiency of the evidence is extraordinarily narrow. (People v. Akins (1997) 56 Cal.App.4th 331, 336.) Although we must examine the whole record, we must do so in the light most favorable to the verdict to determine whether there is evidence of reasonable, credible, and solid value upon which a rational trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Earp (1999) 20 Cal.4th 826, 887; People v. Johnson (1980) 27 Cal.3d 557, 576.) If the circumstances reasonably justify the trier of fact’s findings, the reviewing court’s opinion that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment. (People v. Ferrell (1980) 218 Cal.App.3d 828, 834.)
The Attorney General accepts defendant’s legal premise that to be found guilty, the shooter must have intended to shoot at the victim and not merely at the car. But defendant’s argument is defeated not by the law, but by the facts. The jury might have accepted defendant’s theory that the shooter did not intend to kill the victim when shooting at him at close range through the car door. The jury, however, rejected that inference based on the equally reasonable inference that the shooter was either a poor aim or knew the bullet would penetrate the door and his victim as well. Given defendant’s remarks following the shooting, the jury could reasonably infer that defendant intended to shoot the victim, who was little more than a sitting duck. On this evidence, we are not at liberty to upset the jury verdict.
II
Instructional Error
A. Lesser Included Offenses
Defendant asserts the trial court erred by failing to instruct sua sponte on voluntary manslaughter (Pen. Code, § 192) and discharge of a firearm from a motor vehicle (Pen. Code, § 12034, subd. (d)). The question presented is whether there was substantial evidence that only the lesser crimes were committed. (People v. Birks (1998) 19 Cal.4th 108, 112.) We conclude there was not.
“A defendant who commits an intentional and unlawful killing but who lacks malice is guilty of the lesser included offense of voluntary manslaughter. [Citation.]” (People v. Barton (1995) 12 Cal.4th 186, 199 (Barton).) A defendant intends to kill but lacks malice if he acts in “a sudden quarrel or heat of passion” or kills in the unreasonable belief that it is necessary to defend himself from imminent peril to life or great bodily injury. (People v. Lee (1999) 20 Cal.4th 47, 59; People v. Rogers (2006) 39 Cal.4th 826, 883 (Rogers).) Defendant contends there was ample evidence to support a theory of sudden quarrel, heat of passion, and unreasonable self-defense.
Defendant overlooks the objective nature of the provocation required to trigger a voluntary manslaughter instruction. The defendant’s reason must be “actually obscured as the result of a strong passion aroused by a ‘provocation’ sufficient to cause an ‘“ordinary [person] of average disposition... to act rashly and without due deliberation and reflection, and from this passion rather than from judgment.”’ [Citations.]” (People v. Breverman (1998) 19 Cal.4th 142, 163.) The conduct must be sufficiently provocative that it would cause an average person to be so inflamed that he or she would lose reason and judgment. (People v. Gutierrez (2002) 28 Cal.4th 1083, 1143.)
Here the only evidence of provocation is the fact that one of the Russians wiped gel or grease on Walker. Defendant argues that this act alone humiliated Walker, showed utter contempt for him, and was tantamount to a racial insult. Even if we were to accept the hyperbole, which itself is only tenuously connected to the actual facts, the incident fails the objective test. We simply cannot say that an ordinary person of average disposition would have been so inflamed by the gesture that he would lose all reason and judgment and thereby become a slave to his passions.
Nor is there substantial evidence that wiping the gel or grease on Walker’s shirt threatened Walker or defendant. Further, we reject defendant’s notion that the Russians’ collective behavior of dispersing to their cars fuelled an already volatile situation. There is simply no evidence upon which to base an actual belief that they were in the kind of imminent danger of immediate harm that “must be instantly dealt with.” (Rogers, supra, 39 Cal.4th at p. 883, italics and internal quotation marks omitted.) A sign of disrespect does not justify a lethal response, even in a group setting, when there is no evidence that the Russians would harm either of them.
Defendant insists that the jury believed the shooter was Walker, not he, because the jurors could not agree whether defendant had discharged the firearm. The issue is a red herring. Even if we assume that Walker was the shooter, we conclude there was insufficient provocation for heat of passion voluntary manslaughter and insufficient evidence of an imminent threat of harm for imperfect self-defense. In short, defendant’s attempt to transform a disrespectful gesture into a provocative act is misguided.
Finally, defendant argues the court should have instructed the jury on the lesser included offense of discharging a firearm. But the victim was shot at close range. He did nothing to provoke the shooting and nothing to threaten the shooter, whether that was defendant, Walker, or another member of their group. We have rejected defendant’s insufficiency claim precisely because there is substantial evidence that whoever shot the victim did so with an intent to kill. Given the paucity of evidence that the shooter merely discharged the firearm without intending to strike the victim, we must conclude there was not sufficient evidence to trigger the trial court’s sua sponte obligation to instruct on the lesser included offense.
B. Malice
Defendant contends the trial court was duty-bound to instruct the jury on what malice is not. That is, as a corollary to his contention the jury should have been instructed on voluntary manslaughter, defendant asserts the trial court should have told the jury that provocation or imperfect self-defense negates the malice necessary for murder. His argument fails for the same reason we found the trial court did not err in failing to instruct on voluntary manslaughter as a lesser included offense-there is not substantial evidence to support either theory.
In People v. Rios (2000) 23 Cal.4th 450, the California Supreme Court highlighted the important correlation between the quantum of evidence produced at trial and the trial court’s duty to instruct. The court admonished: “Of course, in a murder trial, the court, on its own motion, must fully instruct on every theory of a lesser included offense, such as voluntary manslaughter, that is supported by the evidence. [Citation.] Hence, where the evidence warrants, a murder jury must hear that provocation or imperfect self-defense negates the malice necessary for murder and reduces the offense to voluntary manslaughter. By the same token, a murder defendant is not entitled to instructions on the lesser included offense of voluntary manslaughter if evidence of provocation or imperfect self-defense, which would support a finding ‘that the offense was less than that charged, ’ is lacking.” (Id. at p. 463, fn. 10.)
As we explained above, the evidence of either provocation or imperfect self-defense was clearly lacking. Thus, the court was not obligated to refine its instructions on malice to correlate to a theory lacking in evidentiary support.
Nor does Justice Kennard’s dissent in People v. Moye (2009) 47 Cal.4th 537 dictate a different result. Justice Kennard’s dissent is predicated on what was, in her view, substantial evidence of a heat of passion killing. Indeed, the victim had not only instigated trouble the evening before the killing and exacerbated the volatile situation by kicking the defendant’s car right before the killing, but most significantly, the victim hit the defendant with a baseball bat just before the killing. Here, by contrast, the victim did nothing at all. Having arrived at the scene just before the shooting, the victim sat in his car. Not only had the minor affront to Walker occurred when the victim was not present, but there were simply no facts of the nature presented in Moye that would lead an “‘ordinarily reasonable person of average disposition to act rashly and without deliberation and reflection, and from such passion rather than from judgment.’ [Citations.]” (Barton, supra, 12 Cal.4th at p. 201.)
C. Aiding and Abetting
Signaling their confusion during deliberations, the jurors asked three questions about defendant’s liability under an aiding and abetting theory. They asked:
“Can we convict the defendate [sic] of first degree murder if we believe he did not shoot the firearm, but did aid or abet?”
“Can we convict the defendant of second degree murder if we believe he did not shoot the firearm, but did aid or abet?”
“... There are two theories. Do they both have to be true? Or if I believe one of the theories is true, and another juror believes the other theory is true. [¶] I’m confused about the word ‘and’ in the second sentence.”
In response to the first two questions, the court admonished the jurors: “Please review Instruction 400, along with all the other instructions that I’ve given you.” In response to the final question, the court instructed: “Please review Instruction 521, along with all the other instructions that I’ve given you. Specifically, the fourth paragraph of instruction 521 may address your question.”
Defendant challenges the court’s instructions on two grounds. First, he claims the questions disclose the jurors’ fundamental misunderstanding of aiding and abetting liability, having chosen the incorrect disjunctive connector “or” and thereby diluting the requisite mental state. Second, in a supplemental letter brief, he argues that the questions were analogous to those posed by the jury in People v. Nero (2010) 181 Cal.App.4th 504, 511-512 (Nero), wherein the court announced the new concept that an aider and abettor can be convicted of a lesser degree of the crime than the actual perpetrator. Defendant urges us to reverse the verdict for either or both of these instructional missteps.
It is true, as defendant contends, that a defendant must aid and abet a perpetrator to assume liability for the perpetrator’s acts. (People v. Beeman (1984) 35 Cal.3d 547.) To aid, and not abet, would allow a conviction without the requisite mens rea to know of the perpetrator’s unlawful purpose and to intend to facilitate, promote, encourage, or instigate the perpetrator’s commission of the crime. (CALCRIM No. 401.) The court, of course, did not initiate the offending disjunctive; however, the jury inquiry did. Rather, the court properly instructed the jury in the language of CALCRIM Nos. 400 and 401. While it might have been preferable for the court to identify the juror error and clarify that defendant must have aided and abetted, we cannot say the court improperly instructed the jury. The instructions, including the court’s response to the jury’s inquiry, were an accurate description of the law on aiding and abetting.
Utilizing the logic of Nero, supra, 181 Cal.App.4th 504, recently decided by the Second Appellate District, defendant argues the court’s responses to the jurors’ questions precluded them from finding him guilty of a lesser crime than the perpetrator. This case gives us no occasion to examine the reasoning of Nero. Defendant, quite simply, overstates the similarities and glosses over dispositive distinctions. In short, the jury did not correlate defendant’s liability to that of a perpetrator as the codefendant in Nero clearly did.
In Nero, a brother and his sister, a lesbian who had raised him after their mother died, found themselves in a volatile situation. The victim approached them and called the sister a “bull dyke” and a “bitch.” He challenged the brother to a fight, and when the brother approached, the victim hit him. A fight ensued. Ultimately, the brother stabbed the victim. He contended he did not intend to kill the victim. The prosecution contended that his sister handed him the knife. (Nero, supra, 181 Cal.App.4th at pp. 508, 510.)
During deliberations, the jury asked a series of questions to determine whether it could convict the sister of a lesser degree of murder than her codefendant brother. (Nero, supra, 181 Cal.App.4th at pp. 511-512.) The trial court reread an instruction stating that each principal, including aiders and abettors, is “‘equally guilty.’” (Id. at p. 512.) Extending the logic articulated by the Supreme Court in People v. McCoy (2001) 25 Cal.4th 1111, the Court of Appeal found that the aider and abettor’s intent floated free of the perpetrator’s and that not only could an aider and abettor be more culpable than the perpetrator as in McCoy, the aider and abettor could be less culpable as well. (Nero, supra, 181 Cal.App.4th at p. 518.) Thus, the trial court erred by requiring the jury to find that the perpetrator and the aider and abettor were “equally guilty, ” whereas in Nero, there was substantial evidence the sister did not harbor an intent to kill.
Here, however, codefendant Walker was tried separately and convicted of voluntary manslaughter. The jury’s questions did not, as they did in Nero, ask whether defendant could be found less culpable than Walker. There was no mention of Walker or any other potential perpetrator. Rather, the jury’s questions revealed its confusion whether defendant could be convicted of first or second degree murder if it found he was not the shooter. Ultimately, the jury was unable to unanimously agree that defendant had personally discharged a firearm. Thus, it makes sense that the jurors’ inquiries were focused on whether they could convict defendant on alternate theories of murder since some jurors believed he was the shooter and at least one believed the prosecution had not proven he was the shooter beyond a reasonable doubt. In Nero, there was no question the brother was the perpetrator; the question presented was whether his sister could be found to have aided and abetted her brother and yet be guilty of a lesser crime. The jury inquiries do not raise the question presented and resolved in Nero.
D. CALCRIM No. 318
The jury was instructed: “You have heard evidence of statements that a witness made before the trial. If you decide that the witness made those statements, you may use those statements in two ways: [¶] 1. To evaluate whether the witness’s testimony in court is believable; [¶] AND [¶] 2. As evidence that the information in those earlier statements is true.” Defendant argues that CALCRIM No. 318, as given, “is erroneous on its face because it permits a jury to regard as truthful anything that a witness reported hearing before trial for the simple reason that the witness reported hearing it before trial.”
We must review jury instructions based on how a reasonable juror would construe them. (People v. Clair (1992) 2 Cal.4th 629, 688.) The ultimate test on appeal is “‘whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way’ that violates the Constitution. [Citation.]” (Estelle v. McGuire (1991) 502 U.S. 62, 72 [116 L.Ed.2d 385].) We conclude that a reasonable juror would not construe the language of CALCRIM No. 318 in the manner suggested by defendant, nor is there any reasonable likelihood that the jury applied the instruction in a way that violates the Constitution.
Defendant fundamentally misconstrues the instruction by assuming it applies to the hearsay declarant, not the witness. Such a construction is at odds with the express language of the instruction. CALCRIM No. 318 permits the jurors to use statements made by the “witness” before trial “[a]s evidence that the information in those earlier statements is true.” As applied in this case, the instruction permitted the jury to use the statements Poulin made to the police as evidence that she had in fact told the police defendant had admitted the shooting before trial. She repeated the same testimony at trial. The instruction does not allow the jury to use her statements as evidence that what defendant, the declarant, said was true, but only that the witness’s account of what she said was true. Thus, we reject defendant’s notion that CALCRIM No. 318 is an unconstitutional exemption from the hearsay rule.
Defendant extends the argument. He points out that the trial court gave a limiting instruction before playing the DVD in which Poulin was interrogated and, before trial, told the police officer that defendant had told her he had shot someone. The court admonished the jury: “I want to admonish the jury before this is played that this DVD is being offered not for the truth of the matter asserted within the DVD what the speakers are saying but to show, if you find it relevant, the demeanor of the speakers and the character and the nature of the interview.” Defendant asserts that the limiting instruction was at odds with CALCRIM No. 318 and therefore, taken together, the two instructions hopelessly confused the jury. We disagree.
First, the limiting instruction pertained only to the DVD. The DVD was played to rebut the defense’s position that Poulin had fabricated her story because she was afraid she would lose her children and she wanted to protect others. The prosecution played the DVD specifically to reflect on her demeanor at the time she made the statement to the police. Thus, the limiting instruction was appropriate to the context in which it was delivered.
Second, the limiting instruction does not change the meaning of CALCRIM No. 318. We have already rejected defendant’s construction of the standardized jury instruction. Quite simply, we do not believe a reasonable juror would construe it to mean he or she could use Poulin’s pretrial statements as evidence that what defendant said was true. Thus, there is no inherent conflict between CALCRIM No. 318 and the limiting instruction, and nothing that we believe would have confused the jury.
III
Character Evidence
Defendant maintains he was denied his fundamental right to a fair trial by the admission of criminal street gang evidence and the gun and ammunition found in his bedroom, which were unrelated to the shooting. This evidence, he insists, was nothing more than impermissible character evidence to demonstrate that he was an armed gangster with a propensity for avenging any act of disrespect and for shooting anyone who denigrated his gang. Yet, he points out, there were no gang-related allegations or enhancements to prove, the evidence that he was a member of a gang was flimsy at best, and the gun and ammunition found in his bedroom were not the type used in the shooting. He contends the trial court’s abuse of discretion in admitting the improper character evidence violated his right to due process and requires reversal of the judgment. We disagree.
Defendant ignores the exceedingly narrow scope of appellate review. The trial court enjoys broad discretion to weigh the probative value of the evidence against its prejudicial impact, and the “trial court’s determination will not be disturbed on appeal absent a clear showing of an abuse of discretion.” (People v. Linkenauger (1995) 32 Cal.App.4th 1603, 1610.) We are not at liberty to usurp the trial court’s discretion, but only to assure that there has been no clear abuse. The record reflects a careful and measured exercise of discretion with no hint of abuse.
We reject defendant’s notion that the gang evidence was irrelevant because he was not charged with any gang enhancements. It is true that because gang evidence is highly inflammatory, we must guard against admission of gang evidence that is only tangentially relevant. (People v. Ruiz (1998) 62 Cal.App.4th 234, 240.) But the trial court found the gang evidence in this case far more than tangentially relevant; rather, the court found it probative of intent and motive. The court explained: “Based on our discussions and the moving papers and offer of proof, the gang overtone and statements and indicia in this case is [sic] strongly intertwined with the facts, the other previous codefendant Walker yelling out gang statements almost simultaneously with the shooting, and the Court feels that sanitizing this evidence -- sanitizing this case and deleting all of those references would be to such a degree that it would remove reality out of the case and what happened, and the jury should be able to hear what happened, why it happened and how it happened, and to delete all of those references would not accomplish that goal or accomplish the search for the truth, and I will allow this evidence with limitations to show as circumstantial evidence of Defendant’s motive.
“In that regard, I have done a[n Evidence Code section] 352 analysis and have found that the probative value is not substantially outweighed by undue prejudice or dangerous [sic] in time consumption or misleading the jury.... The matter is very probative and -- as to the motive of the shooter, and, of course, it is somewhat prejudicial, but I don’t believe, as I stated, that the prejudice substantially outweighs the probative value.”
Absent an understanding that gang members react violently to any perceived act of disrespect and that it is part of a gang’s code of conduct to avenge a slight to another gang member, the jury might not have appreciated the motive for the shooting. The court did not abuse its discretion by allowing expert testimony of gang psychology and sociology to explain what, to the layperson, would have appeared to be a completely senseless shooting. The shooter’s motive is relevant, whether gang allegations or gang enhancements are included in the charges or not.
Defendant suggests that evidence of his own affiliation with a gang was weak and therefore the gang evidence, as to himself, was tangential. He argues that any young person in Sacramento could be characterized as a gang member for simply wearing a Sacramento Kings hat and the color red. Defendant fails to appreciate the cumulative value of the evidence introduced by the prosecution, including not only the hat and red clothing, but also a “916” logo on the hat meaning “Sacramento is a Blood town”; an envelope on which was written “DPH” for Del Paso Heights, a Blood subset; and a photo of him throwing up gang signs. The jury, of course, was free to reject the prosecution’s theory that defendant, a white man, was involved in a Blood gang consisting primarily of African-Americans. There was, however, expert testimony that Caucasians and Hispanics were also included in Blood sets in Sacramento. There was certainly sufficient evidence to justify the court’s exercise of discretion in admitting the evidence and allowing the jury to assess whether defendant was affiliated in some way with the gang.
Defendant also objects to the admission of a shotgun and ammunition found in his bedroom that were not the type used in the shooting, as well as evidence there had been a shooting in his apartment a few hours before the fatal shooting. Relying on People v. Riser (1956) 47 Cal.2d 566 (Riser), defendant asserts, “When the prosecution relies, however, on a specific type of weapon, it is error to admit evidence that other weapons were found in his possession, for such evidence tends to show, not that he committed the crime, but only that he is the sort of person who carries deadly weapons.” (Id. at p. 577.) Defendant contends the admission of the evidence constitutes prejudicial error.
Both Bernadette Poulin and her husband, Kerry Locke, testified that defendant possessed two sawed-off shotguns before the shooting. Poulin was a pivotal witness for the prosecution because she testified that defendant told her immediately after the shooting that he had shot someone. She also testified about hearing a shot fired while defendant was partying in the living room with his friends, and she is the one who found one of the shotguns and some of the ammunition hidden in defendant’s room after the police had completed their search. Defendant accuses her of planting the evidence. Needless to say, her credibility was very much at issue.
The victim was shot with a 12-gauge shotgun, and that weapon was never found. For that reason, defendant insists that the 20-gauge shotgun found in his bedroom was admitted only to show that he was the kind of nefarious character who carried deadly weapons. The prosecutor argued: “But I still believe this evidence is important cause [sic] it corroborates Ms. Poulin’s testimony that the defendant possessed two sawed-off shotgun[s] on the day of the killing. She is a crucial witness, who was told by the defendant that he had just shot someone. The accuracy and truthfulness of her testimony will be contested by the defense. The fact that only one shotgun is recovered -- the [.20]-gauge, which is not the murder weapon both corroborates her testimony that she saw the outline of a gun in the green bag, and that the defendant possessed two guns....
“It’s relevant cause [sic] one is found at the house, and there was another one in the green bag. An empty green duffle bag is located after the shooting -- a couple of days later when the defendant is arrested in the trunk of his car. The missing shotgun -- cause [sic] the [.20]-gauge is found, the missing shotgun happens to be the [.12]-gauge, the type used in the killing. It’s circumstantial evidence that the defendant was the shooter, got rid of that gun, the gun that was used during the shooting. They didn’t get rid of the [.20]-gauge, which wasn’t what was used, but got rid of the [.12]-gauge....
“Bernie sees -- knows there’s two guns. After the shooting, the defendant comes in and says, I shot somebody, and she sees the outline of a gun in a green bag. And the police finds [sic] an empty green bag in his trunk, and they find the [.20]-gauge in the room, and a [.12]-gauge is used in the killing. That’s evidence that he got rid of the [.12]-gauge shotgun, points towards his guilt.”
The prosecutor prevailed. The trial court ruled: “Based on the scenario and offer of proof the Court has received, I’m going to admit the evidence. I find it is probative that defendant had access to the shotguns. It corroborates -- goes to corroborating one of the key witnesses’ testimony, that is Ms. Poulin. And I find the evidence is not substantially outweighed by undue prejudice, time consumption, or risk of confusing the jury that he possessed another shotgun.”
Again, we can find no abuse in the trial court’s exercise of its discretion. The evidence was not introduced merely to show a criminal propensity, but rather to bolster the credibility of a key prosecution witness and to demonstrate that defendant had access to two shotguns within a few hours of the fatal shooting. Interestingly, in both of the cases cited by defendant, Riser, supra, 47 Cal.2d 566 and McKinney v. Rees (9th Cir. 1993) 993 F.2d 1378, the courts allowed evidence of other guns or ammunition as long as the inferences to be drawn from the evidence were relevant to any fact of consequence. Thus in Riser, shells and holsters that might have been used with the type of gun used as the murder weapon were admissible, although other holsters, belts, shells, and another gun were not. (Riser, at pp. 576-577.) In McKinney, a knife was admissible because the prosecution introduced evidence that it was in the defendant’s possession within a couple of months of the fatal stabbing. (McKinney, at p. 1383.) In both cases, it was only the weapons or ammunition that were irrelevant, other than to show impermissible propensity, that were excluded. Neither case demonstrates that the trial court in the case before us abused its discretion by admitting evidence relevant to Poulin’s credibility and the fact that defendant was in possession of two sawed-off shotguns within a couple of hours of the shooting.
IV
Double Jeopardy
Defendant contends he cannot be retried on the Penal Code section 12022.53 allegation that he personally discharged a firearm and caused death because the trial court prematurely dismissed the jury without a sufficient confirmation that it was hopelessly deadlocked. He relies on what he characterizes as the seminal case, Paulson v. Superior Court (1962) 58 Cal.2d 1 (Paulson). Paulson provides the basic legal principles for resolution of this issue, but the facts of Paulson bear no resemblance to those before us. Paulson hurts more than it helps defendant. Nevertheless, at his request, we are happy to rely on the basic law it articulates.
“If a jury is discharged without returning a verdict, the defendant cannot again be put in jeopardy unless he consented to the discharge or legal necessity required it.... [¶]... There is such necessity when ‘at the expiration of such time as the court may deem proper, it satisfactorily appears that there is no reasonable probability that the jury can agree.’ [Citations.]” (Paulson, supra, 58 Cal.2d at p. 5.) The determination whether there is a reasonable probability the jury can reach a unanimous verdict rests in the sound discretion of the trial court. (Id. at p. 6.)
In Paulson, the bailiff told the judge the jury foreman had said the jury was hopelessly deadlocked. “An extrajudicial report from the jury that it cannot agree on a verdict does not justify its discharge.” (Paulson, supra, 58 Cal.2d at p. 6.) Moreover, the jury was discharged after deliberating less than five hours. They were given no opportunity to deliberate after receiving the court’s answers to the four questions they had asked the court. Rather, the court simply asked the jury what their numerical count was on each count and then declared a mistrial. No juror ever stated in open court that he thought the jury could not reach an agreement.
The facts in the case before us are remarkably different. Signaling that it was having difficulty reaching unanimity, the jury asked the court, “The jury unanimously agrees on a verdict, but appears unable to unanimously agree regarding whether a special circumstance is either true or untrue. [¶] Is it acceptable to turn in a verdict without finding a special circumstance is either true or untrue?” The court, with the consent of counsel, responded, “Yes, you may reach a verdict on the charge and not on a special finding. You must consider each charge and each special finding separately.” An hour later the jury reached a verdict.
When the jurors had reassembled in the courtroom, the judge stated, “I just want to confirm on the record, based on your last communication and reviewing the verdict forms that on one of the special findings you were unable to reach a verdict?” The foreperson replied, “That’s correct, your Honor.” After the verdicts were read, all of the jurors were polled and affirmed the verdicts.
Unlike Paulson, the court assured that the jurors were deadlocked. She confirmed that their verdict form, taken in conjunction with their earlier indication that they could not agree on the Penal Code section 12022.53 allegation, meant they were unable to reach a verdict. The foreperson responded affirmatively on the record. No juror objected or voiced optimism that further deliberation might be fruitful. On this record, we cannot say the trial court abused its discretion by declaring a mistrial based on the legal necessity that the jury was deadlocked.
V
Parole Revocation Fine
The Attorney General agrees that the Penal Code section 1202.45 parole revocation fine should be stricken because defendant was sentenced to prison for life without the possibility of parole. Since there is no parole eligibility, a parole revocation fine may not be imposed. (People v. Jenkins (2006) 140 Cal.App.4th 805, 819.) The fine will be stricken.
DISPOSITION
The parole revocation fine shall be stricken. The trial court is directed to amend the abstract of judgment accordingly and to send a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: HULL, J. BUTZ, J.