PEOPLE v. LEAppellant, Down George Yang, Petition for ReviewCal.May 31, 2012S2A9995 ent, SS Ad al ,2] Supreme Court No. IN THE SUPREME COURT OF THE STATE OF CALIFORNTA Deputy THE PEOPLE OF THE STATE OF CALIFORNIA,) Court of Appeal ) No. D057392 Plaintiff and Respondent, ) Superior Court ) No. SCD212126 ) ) ERIC HUNGLE,et al., ) ) Defendants and Appellants. _+) ) Appeal from the Superior Court of San Diego County, The Honorable Charles G. Rogers, Judge APPELLANT DOWN GEORGEYANG’S PETITION FOR REVIEW SHARON M. JONES Attorney at Law State Bar No. 138137 P. O. Box 1663 Ventura, CA 93002 (805) 653-0195 Attorney for Appellant DOWN GEORGE YANG By Appointment underthe Appellate Defenders,Inc. Independent Case System TABLE OF AUTHORITIES FEDERAL CASES Chapman v. California (1967) 386 U.S. 18 Estelle v. McGuire (1991) 502 U.S. 62 McKinney v. Rees (9th Cir. 1993) 993 F.2d 1378 Patterson v. New York (1977) 432 U.S. 197 Strickland v. Washington (1984) 466 U.S. 688 Sullivan v. Louisiana (1994) 508 U.S. 272 United States v. Castillo (10th Cir. 1998) 140 F.3d 874 United States v. Myers (Sth Cir. 1977) 550 F.2d 1036 Wardius v. Oregon (1973) 412 U.S. 470 Washington v. Texas (1967) 388 U.S. 14 In re Winship (1970) 397 U.S. 358 STATE CASES City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287 College Hospital. Inc. v. Superior Court (1994) 8 Cal.4th 704 People v. Alcala (1984) 36 Cal.3d 604 People v. Bigelow (1984) 37 Cal.3d 731 People v. Bolton (1979) 23 Cal.3d 208 People v. Cain (1995) 10 Cal.4th 1 People v. Delgado (2008) 43 Cal.4th 1059 People v. Ewoldt (1994) 7 Cal.4th 380 7, 9, 10, 13 9 7 7 10 7,8 10 People v. Falsetta (1999) 21 Cal.4th 903 People v. Gaines (1997) 54 Cal.App.4th 821 People v. Garceau (1993) 6 Cal.4th 140 People v. Harris (1989) 47 Cal.3d 1047 People v. Harris (1998) 60 Cal.App.4th 727 People v. Haston (1968) 69 Cal.2d 233 People v. James (2000) 81 Cal.App.4th 1343 People v. Jeffries (2000) 83 Cal.App.4th 15 People v. Kelley (1967) 66 Cal.2d 232 People v. Medina (1995) 11 Cal.4th 694 People v. Tenner (1993) 6 Cal.4th 559 People v. Varona (1983) 143 Cal.App.3d 566 People v. Watson (1956) 46 Cal.2d 818 People v. Younger (2000) 84 Cal.App.4th 1360 STATE STATUTES Evidence Code section 352 Penal Codesection 186.22 12, 13 12, 13 5,8 w o W s TOPICAL INDEX PETITION FOR REVIEW NECESSITY FOR REVIEW ISSUES PRESENTED FOR REVIEW STATEMENT OF THE CASE AND FACTS ARGUMENT: I. THE TRIAL COURT ABUSEDITS DISCRETION IN REFUSING TO EXCLUDE EVIDENCE OF AN UNCHARGED SHOOTING INVOLVING APPELLANT AND OTHER TOC MEMBERS, THUS DEPRIVING APPELLANT OF HIS STATE AND FEDERAL RIGHT TO DUE PROCESS OF LAW I. THE TRIAL COURT SHOULD NOT HAVE INSTRUCTED THE JURY IN CALCRIM NO.375 THAT THE UNCHARGEDCRIME, AS EVIDENCE OF THE GANG ALLEGATIONS, WAS SUBJECT ONLY TO THE PREPONDERANCE-OF-THE- EVIDENCE STANDARD OF PROOF, AND THE ERROR REQUIRES REVERSAL OF THE GANG ENHANCEMENTS Il. THE TRIAL COURT’S ERRONEOUS EXCLUSION OF EVIDENCE OF TAPE-RECORDED TELEPHONE CALLS BETWEEN SOULIVONG AND APPELLANT, WHEREIN THEY DISCUSSED BO’S INVOLVEMENT IN THE SHOOTING, REQUIRES REVERSAL IV. THE TRIAL COURT ERRED BY OVERRULING A DEFENSE OBJECTION TO THE PROSECUTOR COMMENTS CONCERNING THE DEFENDANTS?’ FAILURE TO CALL CERTAIN WITNESSES, A REFERENCE WHICH SHIFTED THE BURDEN OF PROOF AND DENIED APPELLANTHIS RIGHT TO DUE PROCESS OF LAW, REQUIRING REVERSAL 1] OF THE JUDGMENT V. INCORPORATION OF ARGUMENTS CONTAINED IN THE PETITION FOR REVIEW OF CO-APPELLANT ERIC HUNG LE, TO THE EXTENT THOSE ARGUMENTS INURE TO THE BENEFIT OF APPELLANT YANG CONCLUSION WORD COUNT CERTIFICATE DECLARATION OF SERVICE BY MAIL APPENDIX - OPINION OF THE COURT OF APPEAL 13 17 17 18 19 Supreme Court No. IN THE SUPREME COURTOF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE OF CALIFORNIA,) Court of Appeal ) No. D057392 Plaintiff and Respondent, ) Superior Court ) No. SCD212126 ) ) ERIC HUNGLE,et al., ) ) )Defendants and Appellants. ) Appealfrom the Superior Court of San Diego County, The Honorable Charles G. Rogers, Judge APPELLANT DOWN GEORGEYANG’S PETITION FOR REVIEW Petitioner, ERIC HUNG LE,respectfully petitions this Court for review following the unpublished decision of the Court of Appeal, Fourth Appellate District, Division One,filed on April 27, 2012, affirming the judgment of the Superior Court of San Diego County. A copy ofthe opinion of the Court of Appeal (“Opin.”) is attached hereto as an Appendix. NECESSITY FOR REVIEW Review is necessary in this case to address important issues of law whichare likely to recur in othercases, and to preserve for further review issues of federal constitutional dimension. ISSUES PRESENTED FOR REVIEW: 1. DID THE TRIAL COURT ABUSEITS DISCRETION IN REFUSING TO EXCLUDE EVIDENCE OF AN UNCHARGED SHOOTING INVOLVING APPELLANT AND OTHER TOC MEMBERS, THUS DEPRIVING APPELLANT OF HIS DUE PROCESS OF LAW UNDER THE STATE AND FEDERAL CONSTITUTIONS”? 2. SHOULD THE TRIAL COURT NOT HAVEINSTRUCTED THE JURY IN CALCRIM NO.375 THAT THE UNCHARGEDCRIME, AS EVIDENCE OF THE GANG ALLEGATIONS, WAS SUBJECT ONLY TO THE PREPONDERANCE-OF-THE- EVIDENCE STANDARD OF PROOF? 3. DID THE TRIAL COURT’S ERRONEOUS EXCLUSION OF TAPE-RECORDED TELEPHONE CALLS BETWEEN SOULIVONG AND APPELLANT, WHEREIN THEY DISCUSSED BO’S INVOLVEMENTIN THE SHOOTING, REQUIRE REVERSAL? 4. DID THE TRIAL COURT ERR BY OVERRULING DEFENSE OBJECTION TO THE PROSECUTOR’S COMMENTS CONCERNING THE DEFENDANTS’ FAILURE TO CALL CERTAIN WITNESSES, A COMMENT WHICH SHIFTED THE BURDEN OF PROOF AND DENIED APPELLANT HIS RIGHT TO DUE PROCESSOF LAW, REQUIRING REVERSAL OF THE JUDGMENT? STATEMENT OF THE CASE AND FACTS Appellant adopts the procedural facts and the summary of facts contained in the Opinion on pages 1 through 10. The Court of Appeal affirmed the judgment. (Opin. 1, 67.) ARGUMENT I THE TRIAL COURT ABUSEDITS DISCRETIONIN REFUSING TO EXCLUDE EVIDENCE OF AN UNCHARGED SHOOTING INVOLVING APPELLANT AND OTHER TOC MEMBERS, THUS DEPRIVING APPELLANTOFHIS STATE AND FEDERAL RIGHT TO DUE PROCESSOF LAW. Priorto trial, defense counsel objected to testimony by Soulivong alleging that appellantparticipated in at least one uncharged shooting by TOC at Asian Crip targets. The defense arguedthat the testimony amounted to propensity evidence, that the evidence wasirrelevantand,if at all relevant, the probative value of the evidence was outweighedbyits potential for prejudice and should be excluded under Evidence Code section 352. (3RT 109-111; {CT 87-92.) The prosecutor argued that evidence of uncharged shootings wasbeing offered to prove the on-going violent interaction between TOC and AC andwastherefore relevant to the defendants’ motive and intent pursuant to the exception under subdivision (b) of Evidence Codesection 1101. (RT 114.) Thetrial court admitted the evidence findingthat the prior shooting incidents were relevant to prove motive and the gang allegation. (3RT 118- 119.) Soulavong wasallowed to testify that on many occasions he was with _ other members of TOC when TOCshot at ACtargets and on oneparticular occasion he and appellant went to Mira Mesa andshot at AC targets. (ORT 2230-2232.) First, appellant submits that evidence of the uncharged shooting constituted impermissible propensity evidence and should have been excluded because the use of evidence of uncharged offenses alwayscreates the danger of suggesting to the jury that the defendant, because he engaged in other criminal acts, is predisposed to commit crimes. For this reason, the well settled rule of law applicable to the admissibility of "prior crimes" evidence is "that evidence of other crimes is inadmissible whenit is offered solely to prove criminal disposition or propensity on the part of the accused to commit the crime charged..." (People v. Kelley (1967) 66 Cal.2d 232, 238-239; People v. Haston (1968) 69 Cal.2d 233, 244.) Whenthe prosecution seeks to admit evidencethat a defendanthas committed prior bad acts or unchargedprior crimes, the courts haveset out three requirements for admission of such evidence: the evidence must be relevant to some material fact at issue; it must have a tendency to provethat fact; and admissibility must not contravene policies limiting its admission. (People v. Bigelow (1984) 37 Cal. 3d 731, 747-748; People v. Thompson (1980) 27 Cal.3d 303, 315.) Here,the evidence of the prior shooting incident failed to meet any oneof these three requirements and should not have been admitted. First, the evidence wasnot relevant to any material fact at issue in appellant’s case. The evidence was purportedly admitted because it was relevant to prove the motive for the shooting at the Han Kuk poolhall. In the overall picture of the case, however, motive was not a contested issue. As the judge observedatthe timeofthe in limine motions, this case was steeped in the history of gang rivalry between TOC and ACandthere wasreally no dispute that the two gangs had been enemies for many years. (3RT 119.) It was anticipated long beforetrial that the prosecution’s gang expert would testify concerning the long history of the violent rivalry between the two gangs. (See 1CT 122-154.) Ultimately, gang motive for the shooting at the pool hall was concededby the defense, leaving identity as the only pertinent issue for the jury to determine. (1SRT 3184-3185.) Second, even had the motive for the Han Kuk shooting been a disputed issue attrial, the prior uncharged shooting had only marginal relevancein that it apparently occurred yearsprior to the Han Kukshooting, it occurred in a different neighborhood, and, apart from Soulivong’s accountofthe shooting, the incident was entirely undocumented and uncorroborated. Moreover, as already noted, there was abundant other evidence of motive including Soulivong’s testimony concerning the numerous shootingsin which Soulivong had participated over the years as a member of TOC. The particular shooting involving appellant added very little to the overall proof of motive, while it overwhelmingly suggested that appellant had a propensity to engage in shootings. Finally, because the evidence wasfar moreprejudicial than probative, and because there was an abundanceoffar less prejudicial evidence establishing motive, the evidence should have been excluded under Evidence Code section 352. It has been observedthat “[t]he two crucial components of section 352 are ‘discretion,’ becausethe trial court’s resolution of such matters is entitled to deference, and ‘undue prejudice,’ because the ultimate object of the section 352 weighing processisa fairtrial.” (People v. Harris (1998) 60 Cal.App.4th 727, 736.) Discretion is delimited by the applicable legal standards, a departure from which constitutes an “abuse”of discretion. (Ibid.; City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 1297- 1298.) In exercising its discretion to determine whether to admit evidence of prior uncharged crimes, a court must take extra care and exclude the evidence unless its probative impact clearly outweighsits prejudicial effect. “[B]ecause other-crimes evidenceis so inherently prejudicial,its relevancyis to be ‘examined with care.’ [4] ... [I]t is inadmissible if not relevant to an issue expressly in dispute [citation], if ‘merely cumulative with respect to other evidence whichthe People may use to prove the same issue’ [citation], or if more prejudicial than probative underall the circumstances.” (People v. Alcala (1984) 36 Cal.3d 604, 631-632.) Here, there can be no doubtthat Soulivong’s testimony concerning the Mira Mesa shooting wasentirely unnecessary to prove the motive for the Han Kuk poolhall shooting and one could not possibly imagine a more prejudicial piece of evidence in a case suchasthis. Additionally, admission ofthis propensity evidence violated appellant’s rights to due process of law underthe federal and state constitutions and the error requires reversal unless it can be shown to be harmless beyond a reasonable doubt. The due process clause requires proof beyond a reasonable doubt of every fact necessary to constitute the charged crime. (In re Winship (1970) 397 U.S. 358, at p. 364.) The admission of evidence of uncharged offenses to show appellant’s propensity to commit the charged offensedilutes this standard of proof. California’s rule against the admission of propensity evidenceis one of long-standing application. The California Supreme Court in People v. Alcala (1984) 36 Cal.3d 604, 630- 631, said, “the rule excluding evidence of criminal propensity is nearly three centuries old in the commonlaw. [Citation.]” In People v. Ewoldt (1994) 7 Cal.4th 380, at page 392, the California Supreme Court noted that “the rule excluding evidenceof criminal disposition derives from early English law and is currently in force in all American jurisdictions by statute or case law.” (Peoplev. Falsetta (1999) 21 Cal.4th 903 at p. 913; see also United States v. Castillo (10" Cir. 1998) 140 F.3d 874, 881 [noting ban on propensity evidence dates back to 17" Century England and early United States history; McKinneyv. Rees (9th Cir. 1993) 993 F.2d 1378 [noting exclusion of propensity evidence dates back to at least 1684.) A rule of evidence is subject to proscription under the due process clause if “‘it offends someprinciple ofjustice so rooted in the traditions and conscience of our people as to be ranked as fundamental.’ [Citations.]” (Patterson v. New_York (1977) 432 U.S. 197, 201-202.) The court in McKinneyv. Rees (9" Cir. 1993) 993 F.2d 1378 found the prohibition on the use of other acts for character evidence “is based on... a ‘fundamental conception ofjustice’ and the ‘community’s sense of fair play and decency’ as concerned the Supreme Court in Dowling [v. United States (1990) 493 US. 342, 353].” (Id., at p. 1384.) “A concomitant of the presumption of innocenceis that a defendant mustbetried for what he did, not for who he is.” (United States v. Myers (5Cir. 1977) 550 F.2d 1036, 1044.) The California Supreme Court has recognized the possibility that propensity evidence may reduce the burden of proof. (People v. Garceau (1993) 6 Cal.4th 140, 186.) The Garceau court noted in a capital murder case that if the jury used evidenceofa prior killing to show the defendant’s propensity to kill, “...the prosecution’s burden of proofasto the ...identity of [the victim’s] slayer, arguably was lightened, thus raising the possibility that defendant’s constitutional right to due process of law was impaired.” (Ibid.) Sincethe error of admitting the prior conduct evidence constituted violations of appellant’s federal right to due process of, appellant’s conviction is reversible unless the governmentprovesthe error to be harmless beyond a reasonable doubt. (Chapman v. California, supra, 386 U.S. at p. 24.) In this case, the guilty verdict was not “surely unattributable” to the error. (Sullivan v. Louisiana, supra, 508 U.S. at pp. 277-279.) Nevertheless, even applying the “abuse ofdiscretion” standard of review, the error requires reversalif it is reasonably probable that a different result would have been obtained in the absence ofthe error. (People v. Watson (1956) 46 Cal.2d 818, 836; People v. Harris, supra, 60 Cal.App.4th, at p. 741.) Under either standard for reviewingtheerror, reversal is necessary. The only evidence which put appellant at the scene of the shooting was Soulivong’s account of statements made by Erik Le on the night of the shooting. Although Erik Le was seen at the pool hall shortly before the shooting and his fingerprint was found on a beer bottle found outside the pool hall that night, there was no similar evidence placing appellant at the pool hall that night. Although the gun used in the shooting waslinked to appellant’s brother, even the prosecution gang expert observed that gunsfloat freely between gang members and there was additionalballistics evidence linking the same gun to other shootings which had not involved appellant. (13RT 2789; 1SRT 2998.) Wherethe identity of the shooter wasreally the only issue for the jury to determine, and where the physical and circumstantial evidence linking appellant to the shooting was so weak,it certainly cannotbesaid that the propensity evidence did not contribute to the guilty verdict in appellant’s case. (Sullivan v. Louisiana, supra, 508 U.S. at pp. 277-279.) Moreover,it is reasonably probable that a different result would have been obtainedin the absence of the erroneously admitted evidence. (People v. Watson (1956) 46 Cal.2d 818, 836; People v. Harris, supra, 60 Cal.App.4th, at p. 741.) II THE TRIAL COURT SHOULD NOT HAVE INSTRUCTED THE JURY IN CALCRIM NO. 375 THAT THE UNCHARGED CRIME, AS EVIDENCE OF THE GANG ALLEGATIONS, WAS SUBJECT ONLY TO THE PREPONDERANCE-OF-THE- EVIDENCE STANDARD OF PROOF, AND THE ERROR REQUIRES REVERSAL OF THE GANG ENHANCEMENTS In regard to the prior uncharged shooting discussed in ArgumentI, appellant’s jury was instructed with CALCRIM No. 375, which providedthat proof of the truth of the uncharged offense was subjectto the preponderance of the evidence standard,rather that beyond a reasonable doubt, andthat the jury wasto use the evidencefor the limited purpose of determining the gang allegation under Penal Codesection 186.22. (1SRT 3123-3124.) Appellant submits that the instruction directed the jury to use the evidenceofthe uncharged crimeas circumstantial evidenceofthe truth of the gang enhancementallegations. As such, the jury should not have been instructed that the uncharged crime was subject to the preponderance-of-the-evidence standard of proof. Rather, as circumstantial evidence of an element or elements of the gang allegation, the evidence wassubject to a standard of proof-beyond-a-reasonable-doubt, asis all circumstantial evidence. As such, the jury instruction, as given, wasincorrect because the instruction was likely to have led the jury to make findings based upon aninsufficient standard of proof. The CALCRIM Committee has recognized the potential for error in instructing a jury to apply the preponderancestandard to proof of uncharged crimes, noting that evidence of other offenses is, in some cases, circumstantial evidence that the defendant committed the offense charged. 9 (CALCRIM Committee Comment to CALCRIM No.375 [“whenthe prosecution's case rests substantially or entirely on circumstantial evidence, there will be a conflict betweenthis instruction [CALCRIM No. 375] and CALCRIM No.223"], citing People v. Medina (1995) 11 Cal.4th 694, 763-764; People v. James (2000) 81 Cal-App.4th 1343,at p. 1358, fn. 9; People v. Younger (2000) 84 Cal-App.4th 1360, 1382; People v. Jeffries (2000) 83 Cal.App.4th 15, 23-24, fn. 7.) The jury should not have beeninstructed that, should they find the uncharged crime proved by a preponderanceofthe evidence, that the evidence could be used as proofofthe gang allegation. Rather, the prior uncharged crime should have been subjected to the same beyond-a- reasonable-doubt standard of proof which applies to any fact necessary to the proof of an element of an enhancementallegation. (People v. Tenner (1993) 6 Cal.4th 559, 566; see also People v. Delgado (2008) 43 Cal. 4th 1059, 1065.) This was error andthe error requires reversalif, “in light of the specific language challenged andall the instructions as a whole,there is a ‘reasonable likelihood’ the jury interpreted the instructions in an impermissible manner.” (Estelle v. McGuire (1991) 502 U.S. 62,72, fn. 4; People v. Cain (1995) 10 Cal. 4th 1, 36.) Here, there is no question that the jury could haveinterpreted the instructions in anything but an impermissible mannerandthe error, therefore, requires reversal of the gangallegations. 10 Il THE TRIAL COURT’S ERRONEOUS EXCLUSION OF EVIDENCE OF TAPE- RECORDED TELEPHONE CALLS BETWEEN SOULIVONG AND APPELLANT, WHEREIN THEY DISCUSSED BO’S INVOLVEMENTIN THE SHOOTING, REQUIRES REVERSAL. The Court of Appeal assumed, without deciding, that the trial court erroneously excluded defense cross-examination concerning telephonecalls 322, wherein appellant said to Soulivong,“They hit Vanessa’s house about that shit that Bo did,” and 330, wherein appellant expressed concern that Soulivong had snitched or would snitch on Bo, and that Soulivong was “slipping” whenhe spoketo the police. The Court of Appealheld, nevertheless, that the error was harmless. (Opin. 60-61.) Appellant submits that the exclusion ofthis evidence resulted in a deprivation of appellant’s right to due process of law underthe state and federal constitutions and, contrary to the Opinion of the Court of Appeal, the error is thus subject to review under the standard of Chapman v.California (1967) 386 U.S. 18. Excluding the wiretapped statements offered by appellant to demonstrate consciousness of innocence while admitting the wiretapped statements offered by the prosecutorto prove consciousnessof guilt tipped the scales ofjustice in favor of the prosecution and thus deprived appellant of due process anda fair trial. In Wardius v. Oregon (1973) 412 U.S. 470, 474, the United States Supreme Court explained,in reference to jury instructions which unfairly favor the government, that “the Due Process Clause...speaks to the balance of forces between the accused andhis accuser." (See also Washington v. Texas (1967) 388 U.S. 14, 24, conc. opin. by Harlan, J.) Here, the prosecution was permitted to present dozens 1] of tape recorded telephone conversations purporting to prove appellant’s consciousness of his own guilt. Yet appellant was prohibited from presenting, through cross-examination questions, a single word ofa single taped conversation suggesting that appellant’s fear and anxiety arose from a source other than his ownguilt. This constituted not only an arbitrary and unjustified abuse of discretion, it also so favored the prosecution thatit resulted in a denial of appellant’s constitutionalright to due process and fairness. Becausethe error resulted in a depravation of appellant’s federal constitutional right to due process of law, it requires reversal unless the error can be shownto have been harmless beyond a reasonable doubt. (Chapmanv. California (1967) 386 U.S. 18.) Even if there had been no constitutional violation, the error requires reversal because it is reasonably probablethat the result would have been more favorable to appellant in the absenceofthe error. (People v. Watson (1956) 46 Cal.2d 818.) In this regard, the California Supreme Court has "madeclearthat a ‘probability’ in [the Watson] context does not mean morelikely than not, but merely a reasonable chance, more than an abstract possibility." (College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 715, italics original, boldface added,citing People v. Watson, supra, 46 Cal.2d 818, 837, and Stricklandv. Washington (1984) 466 U.S. 688, 693-694, 697, 698.) As discussed in previous arguments in this brief, the only issue for the jury to determine was whether appellant was present and participated in the shooting and the evidence in support of this was decidedly weak. Moreover, there was ample evidence which corroborated the defense theory that someone other than appellant committed the offense. It is clear that Bo had been a passengerin a car that drove through the parking lot in front of 12 the Han Kuk poolhall at the time of the shooting and, moreover, Bo confessed to the shooting within minutes of the crime. These facts were consistent with appellant’s excluded wiretapped statements expressing concerns about Bo’s involvementin the shooting. Had the jury been permitted to learn of wiretapped conversations in which appellant clearly demonstrated a lack of consciousnessofguilt, there is a reasonable probability of a different result. Moreover,it cannot be shownthat the exclusion of the evidence did not affect the verdict. The judgment must, therefore, be reversed. IV THE TRIAL COURT ERRED BY OVERRULING A DEFENSE OBJECTION TO THE PROSECUTOR COMMENTS CONCERNING THE DEFENDANTS’ FAILURE TO CALL CERTAIN WITNESSES, A REFERENCE WHICH SHIFTED THE BURDEN OF PROOF AND DENIED APPELLANTHIS RIGHT TO DUE PROCESS OF LAW, REQUIRING REVERSAL OF THE JUDGMENT. During the prosecutor’s final rebuttal argument, it was arguedthat the defense hadtheability to bring in witnesses to the conversation that occurred after the offense at Orlando’s house, that the defense had not done so, and, further, that had those witnesses been called by the prosecution, the witnesses would havelied for their fellow gang members, as the gang culture dictates. The defense objected to these comments asshifting the burden of proofto the defense. The defense objection was overruled. (16RT 3352- 3354.) Appellant submits that the trial court’s refusal to sustain the defense 13 objection and to admonish the jury in regard to the prosecutor's above- quoted comments waserror and requires reversal as discussed more fully below. The prosecutor’s references to the defendants’ failure to call exonerating witnesses here is very similar to the prosecutor’s comments in People v. Gaines (1997) 54 Cal. App. 4th 821, 824-826 (“Gaines.””) In Gaines, during final argumentthe prosecutor insinuated that the defense had purposefully not called an alibi witness becausethat witness would have impeachedthe defendant’s testimony. On appeal, the Court of Appeal found that the prosecutor’s argumentconstituted misconduct because the prosecutor’s comments did not merely make a reference to the defendant’s failure to bring forth evidence to “corroborate an essential part ofhis defensive story,” (see People v. Varona (1983) 143 Cal. App. 3d 566, 570), but, rather, as here, “[T]he prosecutor wasin plain effect presenting a condensed version of what he wastelling the jury would have been [the witness’s] testimony.” The reviewing court further held that, “When this tactic is achieved in the guise of closing argument, the defendantis denied Sixth Amendmentrights to confrontation and cross-examination.” (Ibid., citing People v. Harris (1989) 47 Cal. 3d 1047, 1083; People v. Bolton (1979) 23 Cal. 3d 208, 215, fn. 4 ["The prosecutor, serving as his own unsworn witness, is beyond the reach of cross-examination."].) The sameis true in appellant’s case. During the final rebuttal argument, when the defense would have no opportunity to respond,the prosecutor madeit clear that the defense could have called witnesses to repudiate Soulivong’s account of the events at Orlando’s house on the night of the shooting, but that the defense had not done so. The prosecutor further insinuated that had the defense called such witnesses, they would have “lie[d] for the gang, that’s how it works.” Thus,not only did the prosecutor shift the 14 burden to the defense, he also presented to the jury the prosecution’s own version of what the missing witnesses would havesaid on the stand and, even more egregiously than the prosecutor in Gaines, informedthejury that the testimony would have beenuntrue because “that’s what gang-bangers do.” Here, contrary to the Opinion of the Court of Appeal (see Opin., pp63-64), the prosecutor went far beyond what occurred in Gaines,andthe error requiresreversal because it cannot be shown, beyond a reasonable doubtthat the error was harmless. (Gaines, at p. 826, citing Chapman v. California (1967) 386 U.S. 18, 24, and People v. Harris, supra, 47 Cal. 3d 1047.) Soulivong was the prosecution’s most important witness and the only witness who placed appellant at the scene ofthe offense and, in fact, put the gun in appellant’s handat the time ofthe shooting. The prosecutor not only told the jury that it was appellant’s burden to bring forth the witnesses who could refute Soulivong’s testimony, the prosecutoralso implied that the People had attempted to contact those witnesses without success because the witnesses were “gang bangers” who would never cooperateortestify on behalf of the governmentand, therefore, witnesses who obviously had something to hide from appellant’s jury in order to help a fellow gang member. If this were not enough,the prosecutor also insisted that any witness to the events at Orlando’s houseon the date of the shooting would havelied, anyway, thus implying that this was why the People had declinedto call such witnesses. Here, as in Gaines, supra, “The prosecutor's improper remarks werenot a glancing blow directed at a peripheral target. They were a head-onassault at the defense.” (Gaines, supra, 54 Cal. App. 4th, at p. 826.) Here too, as in Gaines, “‘[t]he prosecution's case against defendant wasfar from conclusive.” As in Gaines, there was no physical evidence linking appellant to the offense and the prosecution’s case really hinged upon 15 Soulivong’s recitation ofa conversation he purportedly overheard a short timeafter the shooting. (Ibid.) Thefact that there were no witnesses who could corroborate the contents of that conversation — or even the fact that any such conversation took place — should have been a factor supporting the defense. However, the prosecutor, through calculated misconduct during final rebuttal argument, wasableto turn the absence of prosecution witnesses to the People’s advantage. Contrary to the decision of the Court of Appeal, this constituted prosecutorial misconduct which denied appellant his Sixth Amendmentright to confront and cross-examine witnesses. (See Opin., pp. 63-64.) 16 Vv INCORPORATION OF ARGUMENTS CONTAINED IN THE PETITION FOR REVIEW OF CO-APPELLANT ERIC HUNG LE, TO THE EXTENT THOSE ARGUMENTSINURE TO THE BENEFIT OF APPELLANT YANG. Pursuantto rule 8.504, subdivision (e)(3) of the California Rules of Court, appellant joins and incorporates by referenceall issues and argumentsraised by his co-appellant ERIC HUNG LEin Le’s Petition for Review,to the extent that those argument inure to appellant Yang’s benefit. CONCLUSION For the reasons set forth herein, appellant respectfully urges this Court to grant review of the decision of the Court of Appeal. Dated: May 25, 2012 Respectfully submitted, ™~, ‘. RON JDNES Attorney for &ppellant DOWN GEORGE YANG 17 WORD COUNT CERTIFICATE Counsel for petitioner hereby certifies that this brief contains 4,509 words, as counted by the word count function of counsel’s word processing program. I declare, under penalty of perjury that the foregoing Word Count Certificate is true and correct. Executed on May 25, 2012, at Ventura, California. 18 DECLARATION OF SERVICE BY MAIL I, SHARON M. JONES,declare that I am over 18 years of age, and not a party to the within cause; my business address is P. O. Box 1663, Ventura, California 93002. I served a copy ofthe attached APPELLANT’S PETITION FOR REVIEWonthe following by placing the same in an envelope addressed as follows: Office of the Attorney General Laura P. Gordan, Esq. P.O. Box 85266 P.O. Box 177 San Diego, CA 92186-5266 Escondido, CA 92033 Appellate Defenders,Inc. Clerk, Court of Appeal 555 W.Beech St., Suite 300 Fourth Appellate District, Division One San Diego, CA 92101 750 B Street San Diego, CA 92101 Office of the District Attorney, attn: Craig Evans Fisher 330 W. Broadway, Ste. 860 San Diego, CA 92101 The Honorable Charles G. Rogers Superior Court of San Diego County P.O. Box 120128 San Diego, CA 92112 Down George Yang, No. G00263 P. O. Box 5102 Delano, CA 93216 Vikas Bajaj, Esq. 225 Boradway,Suite 2200 San Diego, CA 92101 Each said envelope was then, on May 29, 2012, sealed and deposited in the United States mail at Ventura, California, with postage thereon fully prepaid. I declare, under penalty of perjury underthe lawsof the State of California, that the foregoing is true and correct. Executed on May 29, 2012, at Ventura, California. ON M. ery) 19 Filed 4/27/12 CERTIFIED FOR PARTIAL PUBLICATION! COURT OF APPEAL, FOURTH APPELLATEDISTRICT DIVISION ONE STATE OF CALIFORNIA THE PEOPLE, D057392 Plaintiff and Respondent, v. (Super. Ct. No. SCD212126) ERIC HUNGLEetal., Defendants and Appellants. APPEALSand CROSS-APPEALfrom a judgment of the Superior Court of San Diego County, Charles G. Rogers, Judge. Affirmed. Sharon M.Jones, under appointment by the Court of Appeal, for Defendant and Appellant Down George Yang. Laura P. Gordon, under appointmentby the Court of Appeal, for Defendant and Appellant Eric Hung Le. | Pursuant to California Rules of Court, rule 8.1110, this opinionis certified for publication with the exception of DISCUSSION | andII. APPEND Kamala D. Harris, Attorney General of California, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent. A jury convicted appellants Erik Hung Le and Down George Yang of murder (Pen. Code,2 § 187, subd. (a), count 1); attempted willful, deliberate and premeditated murder (§§ 664, 187, subd. (a), count 2); discharging a firearm from a motor vehicle (§ 12034, subd. (d), count 3); and assault with a semi-automatic firearm (§ 245, subd. (b), counts 4 & 5). The jury also foundtrue that all counts were committed for the benefit of a Street gang (§ 186.22, subd. (b)); that as to counts 1, 2 and 3, Le and Yang were principals in the offenses and that during their commission,at least one principal used a firearm (§ 12022.53, subds. (d) & (e)); and finally, as to counts 3 and 4, that Yang personally used a firearm (§ 12022.5, subd. (a)(1)). Le was sentencedto a term of 96 years to life and Yang to a term of 101 yearsto life. Le and Yangraise myriad challenges to their convictions. We consider them seriatim. As we explain, wereject their challenges andaffirm their judgments of convictions. The People cross-appeal, contendingthetrial court erred in staying the sentence under court 4 for the firearm use enhancement under section 12022.5, subdivision (a) and imposing underthat count the 10-year "violent felony" term for the gang enhancement N O Unless otherwise noted,all statutory referencesare to the Penal Code. 2 & under section 186.22, subdivision (b)(1)(C). As we explain, we concludethetrial court properly stayed the firearm use enhancement undersection 12022.5. FACTUAL AND PROCEDURAL BACKGROUND3 In 2002 Le and Yang were membersofthe Tiny Oriental Crips (TOC),a criminal street gang that claimedasits territory Linda Vista and parts of Mira Mesa, communities within the City of San Diego. TOCterritory included the Han Kuk Pool Hall (poolhall) located on Convoy Street then owned by Don Su (Don) and his wife Kyung Su (Kyung) (together, the Sus). The Sus had ownedthepool hall for about three months at the time of shooting. Rivals of TOC included Asian Crips (AC) and the Tiny Rascal Gang (TRG). The pool hall was managedby the Sus’ nephew, Min Su (Min). On the ni ember Kane Ro Pathammavone4andhis4 om ot oO bb y = 1S oD — B &B W o > O D N O 4 ) ) 3 friends Gerry Ian Sulit, Phouthasanoe Volvo Syrattanakoun, Sherri Pak and Rei Morikawawere drinking in a grassy area near the pool hall. During the evening, Le joined the group. At somelater point, Le spotted AC membersnearthepool hall and yelled out a gang challenge. Leleft to make a phonecall to Yang. WhenLereturned, he told Pathammavong and Syrattanakoun to leave with their friends. Pathammavong and his group left and went to a tea house located in the same shopping center as the poolhall. 3 Weview the evidencein the light most favorable to the judgment of convictions. (See People v. Osband (1996) 13 Cal.4th 622, 690.) Certain portions of the factual and proceduralhistory related to appellants' claimsare discussed post, in connection with those issues. 4 Pathammavongtestified pursuant to an agreementwith the district attorney's office in which he pleaded guilty to being an accessory after the fact with a gang allegation, with an agreed-uponsentence of no morethan seven years and use immunity, in return for his truthful testimony. 3 Octavius Soulivong? (Octavius) wasat the house ofhis twin brother Orlando, along with Yang and several other TOC members. Around midnight, Orlando received a telephone call. Orlando claimed the caller was Le. After talking to Le, Orlando handed the phone to Yang, who walked outside to talk. When Yang returned, he told the group that he and Le were goingto the pool hall. About 15 minuteslater, Le arrived at the house. Le told the group there were some AC membersat the pool hall and asked whether anyone had a "strap" (e.g., slang for gun). Le left the house shortly thereafter with Yang and John Vue. Pathammavongandhis friends were at the tea house when Le returned. Le said he neededto take care of something and told Pathammavongandhis group to stay put. Another car pulled up and parked next to Le's car. Le spoke to a passengerin that car, returned to Pathammavongand his group andtold them not to follow. Both cars then left the parkinglot. Pathammavongdid not take Le's advice. Thinking there might be a fight or shooting because of the "tension," Pathammavong and Sulit began driving to the pool hall in Pathammavong's car. On the way they heard gunshots and decided to return to the tea house. 5 Octavius was arrested and charged as one of the shooters in an unrelated crimethat took place on Comstock Street in Linda Vista (Comstock shooting). The evidence ultimately showed Octavius's brother was the shooter in the Comstock shooting. In return for testifying in connection with the Comstock shooting and the shooting in the instant case, Octavius was granted use immunity. He ultimately was placed into the witness protection program after receiving threats. 4 Atthe time of the shooting, Don and his friend Jinwon Lee were outside the pool hall. TRG members Michael Lieng and Nikhom Somsamoutarrived in the parking lot near the poolhall. A car with two people inside pulledinto the alley near the poolhall. Shots were fired from the car and then the car sped away. Oneofthe bullets struck Don in the neck area. Anotherstruck Liengin the right elbow anda third bullet struck Somsamout in the right foot. Don died three days later from the gunshot wound. After the shooting, Le and Yang returned to Orlando's house where, according to Octavius, they spoke about the shooting. Le claimed he wasthe driver and Yang the shooter. Le also claimed Yang "shot the whole clip" from the rear left seat of the car driven by Le; Yang shotat people in frontof the pool hall and kept shooting without aiming. Le referred to AC membersas "ass crack," and bragged that he and Yangshotat them. During Le'’s recounting of the shooting, Yang interjected and corrected some of Le's statements about the shooting. TOC members subsequently learnedthat the shots fired on the night of June 14 had struck and killed Don and not AC members. TOC members, including Yang, agreed not to discuss the shooting any more. Police investigators recovered a beerbottle in the alley on the south side ofthe pool hall; a fingerprint matched to Le was found on the neck ofthe bottle. Police also foundseveralcartridge casings consistent with a 9 millimeter Luger semi-automatic. Becausepolice did not have a murder weapon, a casing was placed into a computer database matching bullets to weapons. During a search warrant executed at Yang's home, police found under a bed an empty box of 9 millimeter casings along with a gun-cleaning kit. Yang's fingerprints were on the gun box and aninstruction manual for the gun. In early 2005, Deputy Richard Sanchez of the San Diego County Sheriff's Department stopped a car for speeding. The driver was Daniel Manalo, a memberofthe "B-Down"criminal street gang. During a search of the vehicle, Deputy Sanchez found a 9 millimeter Jennings Bryco semi-automatic handgun with an illegible serial number. Manalo claimed he boughtthe gun a short time earlier from an individual in Del Mar. Criminalist Mary Jane Flowers of the San Diego Police Department found the gun had a serial number "145266" with the "_" being either a 3 or a5. Flowerstest-fired the gun and placedthe results in the computer database. A match camebackto the poolhall shooting and four other shootings. Investigators traced the gun to Yang's older brother, Meng. Mengtold police he purchased the gun for Yang from a federally-licensed firearms dealer at a gun show in October 2001. Although Mengfilled out the paperwork to acquire the gun, Yang paid for the weapon and accompanied Mengto pickup the gun after the waiting period. Meng told police he gave Yang the gun that day and never saw it again. Mengidentified the box of ammunition recovered during the search warrant as the box that came with the gun. When detective asked Meng about the gun, Mengsaid he boughtit for Yang and did not know its whereabouts. Mengthen blurted out, "Wasit used in a murder or something?" In August 2007 police obtained authorization to wiretap Yang's phone. The record includes myriad incriminating statements involving Yang and the shooting, including as follows: August 14, 2007 (call between Yang and Meng) Yang: "[E}ver since last Wednesday, theystarted asking aboutthat thing. [{] ... [9] Yea, they about to back off but they don't have anything,like the same thing. But the gun, said I sold it that guy '‘Slipper.'[®] The gun, they foundit at Slipper's.” Meng: "Oh really?" Yang: "Yeah. Say you sold it to the Slipper guy and you don't know his namethat's it. If they make it hard for you just say, "You talk to my lawyer. He will answer my questions because you don't know what they're talking about. That's it." Meng: "All right." Yang: "But if you are afraid—they make you afraid. Don't be. Don't worry aboutit. Say you soldit to Slipper, thatis all." August 14, 2007 (Yang, Meng) Yang: "Hey, did they say you bought the gun for yourself or you boughtit for me?" Meng: "Yea, I said bought it for me in particular." Yeng: "All right.” August 14, 2007 (Yang, unidentified male (UM)) Yang: "I told Mengtosay he soldit to ‘Slipper’ already. Said that Meng boughtit and when he didn't want it, he . . . sold it to ‘Slipper.’ " August 14, 2007 (Yang, Meng) 6 The term "Slipper" is slang for a person of Cambodian descent. 7 Meng: "Where did you put the gun?" Yang: "Sold it already. [J]... [§]] Sold it to slipper. . . already, I told you. [9]... [§]] Fuck! You told them that you gave me the gun. You just got me involved!" August 15, 2007 (Yang, Meng) Yang: "[D]id they say, they don't have the gun?" Meng: "They found the box." Yang: "I think they got the gun. They found a gun but yours they don't get it. The serial numbers on yours, I removed it already. I made sure. Just the box. [{] . . . [§]] [I]f they don't have the gun, there is nothing they can do. [4]... [{] It seemslike they don't have goodevidence. ..- Let them take the box. The box and the paper. [4]... [{] They found a gun .. . but the one I gave you I removed the serial numberalready. There is no way they—I removedthe serial number beforeI sold it." August 15, 2007 (Yang, UM) Yang: "My brother fuckin’ told them [police] that he gave me the strap. [4] . . . [[] That wasused for the case. [4] . . . [§]] [T]hey gonna come tomorrow morning and take my ass in for that shit. [§] . . . [§] I want to run[.] [{] ... [9] {'m just thinking about running out onthis." August 16, 2007 (Yang, U.M.) Yang: "[T]hey [police] took Meng yesterday. [§] . - - [] [Tlhey lookin' for the strap.... [9]... [J] Mengsaid . .. he bought me, he got me a strap, he gave mea strap, but they're not sureit's the same one. [9] . . . [{] [H]e just kinda slipped. Not bad,there's still nothing.” August 16, 2007 (Yang, Octavius) Yang: "Hey man—rememberback whenyoufirst cameout, you told me that— that you got that Shirocko?" Octavius: "The what?" Yang: "They [police] got the ... heater." Octavius: "The what?" Yang: "The thing, you know—" Octavius: "What thing?" Yang: "Fabosha—" Octavius: "Oh yeah—yeah. Whatabout it?" Yang: "How do you knowthey haveit?" Octavius: "Because they told me. They told me that they gotit from some big—gotit from some fool from B-Down." Yang: "Did they show it to you or what?" Octavius: "No, they just told me. They told me this when I was in jail." [§] .. . [§] Yang: "[W]hen they hit [searched] my house,last time, they found the—they found the box. That he [Meng] bought the strap in. Cause he boughtit brand new. [{] ... [§] So it's under his name but . . . I sold that motherfucker a long time ago. You know whatI'm saying?” [{] ... [§] Octavius: "[T]hey didn't give me the name of the person whothey picked it up from and shit, but he was like—"Yeah, cause—uh—it don't make sense, cause we got the gun from the fool from B-Downandshit." You know what I mean? ...I wasall, 'I don't know man, whatever.’ Andthen youtell me that the cops went up to Meng and shit and asked MENGaboutthe strap and giving it up and shit, but—I don't know. Either that, though, or they fuckin made some fuckin big ass fuckin story about it or some shit." Yang: "So you knew they were going to go—gotalk to Meng already?" [§] .. . [9] Octavius: "I didn't know. How the hell was I to know? I don't know whatstrap you guys talking about." [§]...[]] Yang: "Whoa, whoa, whoa." Octavius: "WhatI'm talking about is the one that Bo [Pathammavong] had—that Bo used to kill that one fool?" Yang: "Yeah." Octavius: "OK? That fuckin—uh—the nine." Yang: Yeah." Octavius: "That's the one that Cuz wastalking about. He talking about that nine w-w-wasstripped off to fucking—uh—to B-Down. That's the one I'm talking about. I don't know what—whatfuckin strap you talking—talking about Meng— [{] ... [§{] Yang: "[T]hey [police] didn't say that was the gun used. Cause—if it—I think if it was, they would say, 'Your gun was usedfor so and so.’ You know?" San Diego Police Department Detective Daniel Hatfield testified as the prosecution's gang expert. In 2002 TOC had between 50 and 60 members,including Le and Yang. The primary activities of the TOC gang in 2002 included murder, robbery, 10 assault with a deadly weapon,drive-by shootings at occupied residences, shootingsat occupied vehicles, auto thefts and burglaries. DISCUSSION I Le's Appeal! A. Sufficiency ofEvidence to Prove Intent to Kill Le contends the evidence wasinsufficient he acted with the intent to kill, requiring his conviction in count 1 for murder be reduced to second degree murder and his conviction in count 2 for attempted murder be reversed. 1. Standard ofReview and Governing Law On appeal, "we review the entire record in the light most favorable to the judgmentto determine whetherit discloses substantial evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.]" (People v. Bolin (1998) 18 Cal.4th 297, 331.) The same standard applies when assessing a federal constitutional due process claim: "[T]he critical inquiry on review ofthe sufficiency of the evidence to support a criminal conviction must be not simply to determine whether the jury was properly instructed, but to determine whether the record evidence could reasonably support a finding ofguilt beyond a reasonable doubt." (Jackson v. Virginia (1979) 443 U.S. 307, 318, fn. omitted [99 S.Ct. 2781].) Yangjoined in all issues and arguments raised by Le that would inure to Yang's benefit. 1] "The same standard applies when the conviction rests primarily on circumstantial evidence. [Citation.] Although it is the jury's duty to acquit a defendantif it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence,it is the jury, not the appellate court that must be convincedofthe defendant's guilt beyond a reasonable doubt. [Citation.] ' "If the circumstances reasonablyjustify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. [Citation.]"' [Citation.]" (People v. Kraft (2000) 23 Cal.4th 978, 1053-1054.) The conviction shall stand "unless it appears 'that upon no hypothesis whatsoeveris there sufficient substantial evidence to support [the conviction].'" (People v. Bolin, supra, 18 Cal.4th at p. 331.) "[A]ny murder whichis perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside ofthe vehicle with the intent to inflict death, is murderofthefirst degree." (§ 189, italics added.) Thus, proof of a specific intent to kill (express malice) is required to prove first degree murderon this theory. (People v. Chavez (2004) 118 Cal.App.4th 379, 386; see also § 188 [Malice “is express whenthere is manifested a deliberate intention unlawfully to take awaythelife of a fellow creature."].) Premeditation and deliberation need not be proven forfirst degree murder bya drive-by shooting. (People v. Sanchez (2001) 26 Cal.4th 834, 849, 851, fn. 10, 853, fn. 11.) Rather, the murder "could be the product of sudden and spontaneous rage, occurring without premeditation and not occurring in connection with the 12 commission (or attempt to commit) any felony." (People v. Rodriguez (1998) 66 Cal.App.4th 157, 165, fn. omitted.) Becausethere rarely is direct evidence of a defendant's intent, it must usually be determined by looking atall of the circumstances surrounding the defendant's actions. (People v. Chinchilla (1997) 52 Cal.App.4th 683, 690.) Whether a defendant had the intent to kill is a question offact for the jury. (People v. Lashley (1991) 1 Cal.App.4th 938, 946.) 2. Analysis Based on the evidence presentedattrial, we conclude a reasonable jury could have found that Le harbored the requisite intent to kill on the night of the shooting. Indeed, the record showsthat on the night Su waskilled, Le and other TOC members were hanging out on a grassy area near the pool hall; that at one point Le saw cars pulling into the parking lot and yelled out a gang challenge because Le believed members ofthe rival gang AC, whom Lereferred to as "ass cracks," were in TOC territory; that Le told the group he wasgoingto call Yang, left and returned aboutfive minutes later and told Pathammavong, "Get your people out of here"; that Pathammavong and Sulit gathered their friends and went to a tea house in the same shopping center as the pool hall; that while Octavius wasat his brother's house along with several TOC members, including Yang, Le called and spoke to Orlando andthen to Yang, who confirmedthat he was going with Le to the poolhall; that about 15 minutes later, Le arrived at Orlando's house, said there were AC membersat the poolhall and asked if anybody wantedto return with him to the poolhall; that before leaving Le asked if anybody had a "strap" and then spoke to Yang, who was known by other TOC members to own a 9 millimeter gun; that Le, Yang and Vueleft in Le's car and returned to the pool hall; that Le next drove to the tea house where he met Pathammavongandhis group and instructed them tostay at the tea house: that Le approached anothercarthat had parked near Le's car, spoke to a passenger of the other car and then returned to Pathammavong's group andsaid not to follow; that both cars pulled out of the parkinglot at the same time and gunfire erupted shortly thereafter; that after the shooting Le and Yang returned to Orlando's house, where Le spoke about the shooting; that Le confirmed he wasthe driver and Yang the shooter, and Yang had "shot the whole clip" at some "ass cracks"; and that AC's presenceat the pool hall was an act of disrespect to the TOC because TOC considered the poolhall its territory. Weconcludethis evidenceis sufficient to support the jury's finding that Le harbored the requisite intent to kill on the night of the shooting. Le contends that any evidence proffered by Octaviusis inherently unreliable and cannotbe considered to support theintent to kill finding because on the day of the shooting Octavius had consumed 320 ounces of malt liquor between the hours of 2:00 p.m. and midnight and because Octavius was knownto be a compulsive liar. However, it wasfor the jury to decide whetherto believe Octavius's testimony and the weight, if any, to afford it. (See People v. Breverman (1998) 19 Cal.4th 142, 162 [assessing witness credibility is exclusively the jury's function].) In addition, Le does not dispute that the trial court properly instructed the jury in this case regardingits role as fact finder and as sole judge of the "believeability of the witnesses." In addition, even without the testimony of Octavius, there was sufficient, credible evidenceto support the jury's finding that Le harbored the requisite intent to kill on the night of the shooting.8 Wealso reject Le's contention that the statement by the People's gang expert that shootingat rivals without hitting them showsa lack ofintentto kill in this case. However, the jury decides whetherthereis an intent to kill and not an expert. In any event, the record shows the expert wastestifying about the "benefits" a gang derives whenshotsare fired by one of its membersat a rival gang and missesthe intended target, or, as in the instant case, hits an unintended target, among other subject matters. This testimony in no way supports Le's argument. B. Motionfor Severance Le next contendsthetrial court abused its discretion when it refused under section 10989to severthe trials of the two appellants. 1. Additional Background 8 For the same reason, we reject Le's argumentthere was insufficient evidenceofintentto kill to support his conviction in count 2 for attempted murder. 9 Section 1098 provides: "When two or more defendants are jointly charged with any public offense, whetherfelony or misdemeanor, they mustbetried jointly, unlcss the court order[s] separate trials. In ordering separatetrials, the court in its discretion may ordera separate trial as to one or more defendants, and a joint trial as to the others, or may order any numberofthe defendantsto be tried at one trial, and any number ofthe othersat differenttrials, or may order a separatetrial for each defendant; provided, that where two or more persons can be jointly tried, the fact that separate accusatory pleadings werefiled shall not preventtheir jointtrial." 15 At the time Lefiled his motion to sever, there were three defendants in the case: Le, Yang and Pathammavong. Le mainly argued in his motion that severance was necessary because the People intended to introduce “highly prejudicial" statements by Pathammavongthat implicated Le in the crime by placing Le"at or very close" to the proximity of the crime scene and by insinuating that Le knew a shooting was about to take place. Le also argued that severance wasnecessary because his association with Yang and Pathammavong wasprejudicial, inasmuch as he claimed both individuals were much more involved in TOC than he;that there wasa likelihood ofjury confusion resulting from evidence involving multiple counts against three individuals; that Yang might give testimony exonerating Le if Yang was separately prosecuted; andthat the case against him was weak while the case against Yang and Pathammavongwasstrong. At the hearing on the motion, thetrial court noted Pathammavong wasnolonger a defendantin the case after pleading guilty and agreeing to testify against Yang and Le. Le's counsel acknowledged that with Pathammavongoutofthe case, "70 to 80 percent of the argument[on the motion to sever] appears to be moot." Nonetheless, Le's counsel argued severance wasstill required because the case against Le allegedly was much weaker than the case against Yang. Thetrial court denied the motion to sever, reasoning as follows: "There is, of course, a general preferencein the law forjoint trials. In part, this is for judicial economy,andin part it's to minimize the emotional and other costs to 16 witnesses. Certainly that preference, however, must not be allowedto infringe on the right of a defendantto receive a fair trial and due process. "The cases say that this is something of a discretionary call for the court to make. There are a numberofcases that have talked about the various grounds that would either authorize a severance or require one or that should be considered by the court. I don't really see any of those grounds present here. [J]. . . [§] "I understand that there is some circumstantial evidence as to Mr. Yangthat doesn't exist with respect to Mr. Le, and there may be someintercepted phonecalls of Mr. Yangthat don't involve Mr. Le, but, frankly, looking at it as a whole, it seems to me that the evidenceis [relatively] comparable as to both of these gentlemen. "There wasa reference in the papers, I think, to the possibility that if severed, Mr. Yang would give exonerating testimony. That representation seems to meto bepretty watery. I certainly don't have anything other than that that might demonstrate a due process o[r] Sixth Amendmentviolation. "Bottom line is I believe that in this caseit's not a good basis to sever, and I'm going to deny the motion for severance." 2. Governing Law "* "When two or more defendants are jointly charged with any public offense, whether felony or misdemeanor, they mustbe tried jointly, unless the court order[s] separate trials." Our Legislature has thus "expressed a preferencefor jointtrials." 17 [Citation.] But, the court may, in its discretion, order separate trials ....'" (People v. Letner and Tobin (2010) 50 Cal.4th 99, 149-150.) "The court should separate thetrial of codefendants'in the face of an incriminating confession, prejudicial association with codefendants,likely confusion resulting from evidence on multiple counts, conflicting defenses, or the possibility that at a separate trial a codefendant would give exonerating testimony.'" (People v. Turner (1984) 37 Cal.3d 302, 312, overruled on other groundsas stated in People v. Anderson (1987) 43 Cal.3d 1104, 1149-1150, superseded by statute as stated in People v Letner and Tobin, supra, 50 Cal.4th at p. 163, fn. 20.) "Whether denial of a motion to severthe trial of a defendant from that of a codefendant constitutes an abuse ofdiscretion must be decided onthe facts as they appearat the time of the hearing on the motion rather than on what subsequently develops." (People v. Isenor (1971) 17 Cal.App 3d 324, 334.) 3. Analysis Le argues that the evidence against him was much weakerthan the evidence against Yang, andas such, Le wasprejudiced by his "mere association" with Yang. To support this argument, Le claims there was "scant" evidenceestablishing his "presence and participation” in the shooting, as comparedto the "large amount" of evidence against Yang, which he claims was substantial and included wiretap and other evidence positively linking Yang to the murder weapon. Wedisagree with Le that the evidence against him was "scant," as demonstrated ante in connection with the summary of evidenceonthe issue of intent to kill. In fact, the 18 record showsthatat the time thetrial court denied the motion to sever there was substantial evidence of Le's involvement in the shooting. 10 Moreover, we note that Le and Yang were charged with having committed " ‘common crimes involving commonevents and victims.’ [Citation.] The court accordingly was presented with a'" ‘classic case'"' for a joint trial. [Citations.]" (People v. Lewis (2008) 43 Cal.4th 415, 452-453.) Thus, on this record we conclude there was neither an abuse of discretion nor gross unfairness whenthe trial court denied Le's motionto sever. (See People v. Letner & Tobin, supra, 50 Cal.4th at pp. 149-150 ["a reviewing court may reverse a judgment only on a showing that joinder' “resulted in 'gross unfairness’ amounting to a denial of due process "' [Citation.].]") C. Requestfor Foundational Hearing Regarding Testimony by Octavius Le next contendsthe trial court erred both whenit refused to hold a hearing pursuant to Evidence Codesection 402 before allowing the jury to hear the testimony of Octavius and whenit ultimately admitted that testimony. Le contendsthis testimony was inadmissible hearsay and opiniontestimony, and more prejudicial than probative. 1. Additional Background 10 This evidence includes, among other things, placing Leat the crime scene immediately before the shooting, whenLeyelled out a gang challenge to membersofthe ACarriving at the poolhall; Le instructing other members of his group to leave the area, which they in fact did when they wentto the tea house; Le leaving and returning a short time later with Yangandothers; Le instructing the group at the tea house notto follow as he left in his car along with another car; and shots ringing out within a few minutes after he left. This evidence is in addition to the testimony of Octavius, whotestified Le bragged about the shooting after the fact, when Le and Yang returned to Orlando's house, including how Le wasthe driver and Yangthe shooter. 19 At a pretrial hearing, the trial court summarized whatit described as the "interrelated" motions of Le and the People regarding the admission of testimony by Octavius. The People moved to admit Octavius's testimony regarding statements made | by Le and,to a lesser extent, by Yang after the shooting, as adoptive admissions. Le moved to exclude those statements as well as any testimony by Octavius regarding a telephonecall Le allegedly made before the shooting when Le spoke to Orlando and then Yang. After hearing argument, the court noted Octavius had provided inconsistent accounts of the events and conversations regarding the shooting in interview transcripts, police reports and the preliminary hearing transcripts. The court found these inconsistencies provided "fertile ground for examination, cross-examination, impeachment, and even impeachmentofthe impeachment." The record showsthetrial court thoughtfully explained its reasoning to admit the testimony of Octavius, however, noting that the issues raised by the defense went to weight rather than admissibility: "If we step back from the trees here and lookat the forest, though, what are we dealing with? We're dealing with a long-time gang member [Octavius] and friend of the two defendants, or at least one of them; probably intoxicated at the time that he made these observations; talking about things that happened seven or eight years ago. Some of the statements were maybe made whenthey had only happened aboutfive or six years ago. 20 "Now the questionis, that I'm dealing with, do I not allow his testimony on certain issues? Jt seems to me that we have to consider what the Evidence Code contemplates. The Evidence Code, of course, contemplates that clearly inadmissible evidence will not be put before the jury. "But our law also contemplates that the jury will decide the credibility of the witnesses and they will find the facts from the testimonythat is there. "It seems to me that the People havea basis to put this man on the stand,referring to Octavius, and seek from him testimony that he heard the conservation when Mr. Le and Mr. Yang returned. "By casting it that way, I realize I'm assuming that something happened. But we know that they left and we know[that] they came back, and at some point when they came back, there was a conversation among a group ofpeople. And it is clear thatat least at somepointin the past, Octavius has said that Mr. Le described what happened and Mr. Yang wasjoiningin. "Nowhe's also repudiated that, and counsel get to impeach him with that. But the threshold question is whether that kind of testimony, absent the repudiation, would be admissible. And it is. There is a doctrine of adoptive admissions. "Weuse the term 'admission' in this sense as a statement of a party opponent. It doesn't really need to even be against anybody's interest. That's a separate doctrine. But the law is clear that if A and B are standing there, and A is talking about what we did and B is nodding or agreeing or adding details or even standing there equivocally silent, that 21 is evidence from whicha trier of fact may conclude that B was saying, 'Me too,' and adopting those statements. That's what the adoptive admission exception deals with. (] -.- 1 "I rememberreading the testimony of Mr. Octavius Soulivong. I didn't do the prelim. Youall have read far more, because you havehis discovery statements. [{] But certainly on page 67, he does confirm that a conversation occurredthat consisted of Down Yang and Erik Le describing what happenedat the pool hall. And it was made to a group of people, of which he wasa part. "And I think that there's enough here for the district attorney to be able to call him and ask him these questions. I'll rule on objections as they might be made,butit sure seemsto methat the district attorney will be able to obtain from this gentleman statements that will be admissible as actual statements of the speaker, an actual admission of the speaker, and onethat's adopted by the person that wasn't speaking. [] .. . [§] "I am going to, so that the record is reasonably clear, allow the People to admit the testimony of Octavius, subject to all objections that may be made." 2. Governing Law Evidence Code section 402 authorizesa trial court to hold a hearing outside the presenceof the jury for the purpose of determining the admissibility of evidence. (See People v. Hoyos (2007) 41 Cal.4th 872, 897 ["Evidence Code section 400 etseq., sets forth the rules for determining the existence or nonexistence of a preliminary fact when the parties dispute its existence"], overruled on another groundas stated in Peop’e v. 22 McKinnon (2011) 52 Cal.4th 610, 640-641.) "But subdivision (b) of Evidence Code section 402 does not mandate . . . that a court must hold an evidentiary hearing on request." (Ibid.) Where "no 'preliminary fact’ concerning . . . admissibility"is presented, "challengesto the reliability” of proffered testimony go "to the weightof[the] testimony rather than its admissibility (Evid. Code, § 351)... ." (bid.) In such cases, an evidentiary hearing is not warranted. (/bid.) Moreover, a ruling on a motion under Evidence Code section 402 is not binding if the subject evidence is profferedlater in the trial. (People v. Williams (1997) 16 Cal.4th 153, 196.) "[T]he court may admit conditionally the proffered evidence underthis section, subject to evidence of the preliminary fact being supplied later in the course of the trial." (Evid. Code, § 403, subd. (b).) "On appeal,a trial court's decision to admit or not admit evidence, whether made in limine or following a hearing pursuant to Evidence Codesection 402,is reviewed only for abuse of discretion." (People v. Williams, supra, 16 Cal.4th at p. 197 [trial court "Was within its discretion in failing to conduct additional proceedings outside the jury's presence on the question of gang evidence."].) 3. Analysis It appearsthat the "preliminary fact" on which Le arguesthe trial court was required to conduct such a hearing wasthe alleged inherent unreliability of Octavius's testimony, given the inconsistent statements he had made overthe years regarding the events and conversations of and about the shooting, and given he had been drinking on the day ofthe shooting. Le acknowledgesin his brief that portions of Octavius's testimony werelikely admissible. However, he argues that an Evidence Code section 402 hearing was the "only viable solution" for the trial court to "parse through the various statements" made by Octavius, which he claims "consisted of an amalgam of potentially admissible and inadmissible statements." Wedisagree. By Le's own admission, his challenge to Octavius's statements went to weight and not admissibility; as such, the trial court was not required under Evidence Code section 402 to conduct a hearing to determine admissibility based on the alleged "preliminary fact" of unreliability. (See Evid. Code, § 351.) We decline Le's invitation to adopt a rule mandatingthat trial court conduct an Evidence Codesection 402 hearing merely because a witness maytestify to subject matter that is inadmissible, as such a broad and expansive rule would effectively require a hearing every time a witness took the stand. In addition, we note that in denying Le's request for a hearing under Evidence Code section 402 the trial court did make a preliminary finding that despite Octavius's inconsistency regarding the events and conversationsafter the shooting, including who said what, "at least at some pointin the past[] Octavius has said that Mr. Le described what happened and Mr. Yang wasjoining in." Moreover, even if we concluded the trial court erred by not holding such a hearing, we would further conclude that error does not require reversal. (See People v. 24 Stoll (1989) 49 Cal.3d 1136, 1163 [errors involving exclusion of evidence are generally governed by the Watson standard, based on People v. Watson (1956) 46 Cal.2d 818, 836, namely whether it is reasonably probably that a result more favorable to defendant would have been achieved absentthe error].) Here, the record showsthetrial court was keenly aware that portions of Octavius's statements may have been inadmissible and the trial court was prepared to exclude them on proper objection. Le also doesnot arguethat thetrial court erred by overruling any of his objections and/or by admitting any one statement of Octavius, as opposed to_ challenging the procedure the court used to rule on the admissibility of those statements. Thus, even if the trial court was required to conduct a hearing under Evidence Code section 402, it is not reasonably probable the result at trial would have been any different. D. Pathammavong's Testimony He Was Targetedfor Being a "Snitch" Le next contendsthetrial court erred whenit overruled his objection to Pathammavong's testimony that while in local custody somebody had "droppeda kite on [him]." Pathammavong explained this meant he was considered a "snitch" and people were out to get him. Pathammavongtestified he had no information that defendants were responsible for this conduct. Le nonetheless contendsthetrial court abused its discretion whenit refused to exclude such evidence becauseit was not relevant and because it was extremely prejudicial. 1. Additional Background 25 While on the witness stand, Pathammavongtestified he was concerned for his safety because he would be "green lighted." When asked what that meant, Pathammavongrespondedhe could be shot, attacked or hurt by a gang member. Pathammavongthen madethe "kite" statement when discussing a problem he experienced while incarcerated. Defense counsel objected, but the court overruled the objection and allowed Pathammavongtotestify about being beaten up by fiveor six people. Ata sidebarafter the jury had been excused, defense counsel complainedthat Pathammavong's testimony was inadmissible hearsay and prejudicial because Pathammavong's testimony would lead the jury to believe appellants "are deadly. dangerous people who can cause others to be beat up in jail at any given moment on a whim, and I think that prejudices Mr. Yang and Mr. Le tremendously." Thetrial court disagreed, noting in the gang culture there is a custom and practice to retaliate against witnesses whotestify against the gang and its members. The court noted that the jury would be instructed to consider the demeanorandattitude of each witness, and that Pathammavong's testimony wentto that issue. The court also noted that the probative value of that evidence outweighed any prejudice to Le and Yang, particularly because the court had instructed the jury that any statements by Pathammavong regarding his safety was not to be attributed to either Le or Yang, and because Pathammavong's testimony madeit clear that the attack was not connected to appellants. 26 The following day, membersof the jury submitted a note to the court requesting a meeting. Oneof the jurors explained during the meeting attended by counselthat they were generally concerned for their own safety due to the nature of the case and because their names were mentionedat the beginningoftrial. After conferring with counsel on and off the record outside the presence of the jury, the court, with the assistance of all counsel, discussed how to handle the safety issue raised by jury members. The court noted it had a "dual duty"in this instance: "Let me reason this through. If I thought there were a security concern, and there are cases that havethose, then it would be incumbent upon meto take steps to do two things: number one, alleviate that concern for the protection and security of the jurors; and, number two, alleviate it or take measuresso that it wouldn't prejudice the defendants." The court also noted it had no information that anybody wasin danger, including jury members. In the presence ofthe jury and the defendants, the court addressed the note by the juror and communicatedthat it was satisfied no notesor lists of potential jurors had been removed from the courtroom during voir dire; that after making an inquiry, there was no information of any threat against any juror, court personnel and counsel; and that the instant case did notraise any real concerns beyondthe "theoretical concern that would exist because of what you've heard someofthe witnessestestify to." The court next asked the jurors whether any safety concern would influence in any waytheir ability to be fair and impartial. All jurors gave appropriate responses that they could remain fair and impartial. The court also asked any jurorto raise his or her hand if 27 he or she could no longer follow this admonition. ‘The court noted on the record no hands were raised. The court added that Le and Yang were "entitled to the independent, conscientious decision of each juror. And that means a decision that is made without regard to concerns about your or anybodyelse's safety as a result of your service in this case." 2. Governing Law and Analysis Evidence Code section 780 provides in relevant part: "Except as otherwise provided by statute, the court or jury may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprovethe truthfulness of his [or her] testimony at the hearing, including but not limited to any of the following: [{]...{§](f) The existence or nonexistence ofa bias, interest, or other motive. [4] . . . [9] G) His [or her] attitude toward the action in which he[or she] testifies or toward the giving of testimony." "'Evidence that a witness is afraid to testify or fears retaliation for testifying is relevant to the credibility of that witness and is therefore admissible. [Citations.] An explanation of the basis for the witness's fear is likewise relevant to [his or] her credibility and is well within the discretion of the trial court. [Citations.]'" (People v. Mendoza (2011) 52 Cal.4th 1056, 1084; see also People v. Valencia (2008) 43 Cal.4th 268, 302 ["Evidence of fear is relevant to the witness's credibility."].) "Moreover, evidence ofa 'third party' threat may bear on the credibility of the witness, whetheror not the threat is directly linked to the defendant." (People v. 28 Mendoza, supra, 52 Cal.4th at p. 1084; see also People v. Guerra (2006) 37 Cal.4th 1067, 1142 [for evidence that a witnessis afraid to testify or fears retaliation for testifying, "there is no requirement to showthreats against the witness were made by the defendant personally or the witness's fear ofretaliation is ‘directly linked' to the defendant."|.) Our Supreme Court in People v. Mendoza, supra, 52 Cal.4th at pages 1084-1085 discussed People v. Olguin (1994) 31 Cal.App.4th 1355, among other authorities, which is instructive on the issue at hand. Briefly, in People v. Olguin "an eyewitness to a gang- related shooting testified he left the crime scene and did not voluntarily provide information to the police because ' "I didn't want anything to happen to my houseor to my family." ' [Citation.] Over the defendants’ objection, the witness testified that someonetelephoned him a few daysafter the shvoting, that the caller said they knew wherethe witness lived and that he had better watch his back, and that the caller also mentioned the name of the defendants' gang. The witness further testified that someone subsequently 'spray-painted the word "Rata" (Spanish for "rat") on his driveway. [Citation.] In holding the challenged evidence was properly admitted, [the court in People v.| Olguin explained: 'Just as the fact a witness expects to receive something in exchange for testimony maybe considered in evaluating his or her credibility [citation], the fact a witness is testifying despite fear of recrimination is important to fully evaluating his or her credibility. For this purpose, it matters not the source ofthe threat. It could come from a friend of the defendant, or it could come from a stranger who merely approves of the defendant's conduct or disapprovesofthe victim. ... 29 [{] Regardless of its source, the jury would be entitled to evaluate the witness's testimony knowing it was given under such circumstances. And they would be entitled to know not just that the witness wasafraid, but also, within the limits of Evidence Code section 352, those facts which would enable them to evaluate the witness's fear. A witness who expresses fear of testifying becausehe[or she]is afraid of being shunnedbya rich uncle whodisapproves of lawyers would haveto be evaluated quite differently than one whose fear of testifying is based upon bullets having been fired into [his or] her homethe night before thetrial.' [Citation.]" (People v. Mendoza, supra, 52 Cal.4th at pp. 1084-1085.) "Likewise, in People v. Avalos (1984) 37 Cal.3d 216... , an eyewitness to a crime hesitated before responding affirmatively when asked by the prosecutor whether the person she previously identified in a lineup(i.e., the defendant) wasin the courtroom. [Citation.] At an in camerahearing,thetrial court ruled the prosecution might ask whether the witness wasreluctant to testify out of fear, because 'the fact she felt fear, whether or not caused by specific acts of any persons connected with the trial, was relevant to her credibility and . . . the probative value outweighed any potential prejudice to defendant.' [Citation.] Upon resuming the stand, the witness testified she was afraid to testify. Defense counsel then clarified during cross-examination that the witness's fear was due only to the importance of the event. [Citation.] On appeal, we concluded [in People v. Avalos] the evidence was properly admitted: 'The determination that an explanation of [the witness's] hesitation would be relevant to the jury's assessment of her credibility was well within the discretion ofthe trial court.’ [Citation.] Moreover, the 30 evidence had no prejudicial impact given counsel's clarification that the witness's fear did not reflect on the defendant. [Citation.] "These authorities makeclearthat a trial court has discretion, within the limits of Evidence Codesection 352, to permit the prosecution to introduce evidence supporting a witness's credibility on direct examination, particularly when the prosecution reasonably anticipates a defense attack on the credibility ofthat witness." (People v. Mendoza, supra, 52 Cal.4th at p. 1085.) In light of the above authorities, we concludethe trial court properly exercisedits discretion when it allowed Pathammavongtotestify he was concernedfor his safety because while in local custody somebody had "dropped a kite on [him]." Pathammavong explained this meant he was considered a "snitch" and people were out to get him. (See People v. Mendoza, supra, 52 Cal.4th at pp. 1084-1085; People v. Olguin, supra, 31 Cal.App.4th at pp. 1368-1369.) E. Discovery Violations Le next contends he was denieda fair trial because of the allegedly late disclosure by the prosecution of fingerprint evidence on a beer bottle found near the poolhall linking Le to the crime scene and of an e-mail/letter written by a defense witness that portrayed Octavius as a habitual liar. Specifically, he contends thetrial court erred by refusing to read a special jury instruction advising the jury that the prosecution did not provide this evidenceat least 30 days before trial commencedandthatthe jury therefore could consider such failure in determining the weight to be given this evidence.!! 1. Additional Background—Fingerprint F-vidence Duringtrial, the prosecutor informed the court and the defense that the People's expert had found an additional set of prints from a beer bottle recovered from the back alley of the pool hall which, when analyzed, matched Le's fingerprints. The prosecutor represented he turned this information over to the defense as soon as he acquired it. Le's counsel in response argued the fingerprint evidence should be excluded because the prosecutor had violated section 1054 by not providing the information 30 days beforetrial. The court found there was no discovery violation because the prosecutor did not willfully suppress evidence as the People did not learn that Le's print was on the beer M1 Le in his brief confusingly arguesthetrial court also erred whenit refused to give this special jury instruction with regard to the e-mail/letter evidence, even though the proposedinstruction itself addressed only the fingerprint evidence. 32 bottle until that morning. Although the court refused to suppress the evidence,it agreed to a five-day delay of the testimony of the People's expert who discoveredthe fingerprint evidence in orderto give that expert additional time to complete a written report and give the defense time to hire its own expert, if necessary, to investigate the prints afterit received the report. Le's counsel subsequently requested a special jury instruction be given addressing the prosecution's alleged failure to comply with the discovery requirements. In rejecting the proposedinstruction, the trial court ruled as follows: "Here it doesn't seem to me, frankly, that there was a discovery violation. The evidenceofthe print on the [beer] bottle I find was disclosed as soon as it was knownto exist. "Now,arguably, one could argue that the police were negligentin not tracking down that second envelope of fingerprints earlier and processing it earlier. But that's the worst that can be said. I don't find even a shred of evidencethat they willfully waited until the eleventh hour to do this comparison. "T don't think it was a discovery violation. There was an inadvertent failure to recognize significant evidence. But as soon as that was recognized, it wascalled to everybody's attention. And I think I acknowledged before, and I certainly acknowledge again, thatit's no fun to be surprised by that kind of evidence. But I don't see thisas, particularly in a case where the investigation went as long asit did and involved different investigative units, that this was willful or a discovery violation. L o L o "On theissue ofprejudice, .. . 1 don't really think that the cross-examination wouldlikely to have been too much different. It seems to methat since the evidence of the fingerprint on the bottle is somewhat damning, it would be certainly appropriate to establish from the witnesses who werethere at the pool hall that nobody saw him that night, because that then supports the inference that the bottle was there for some other reason, had been in the car perhaps and kickedout by the actual people in the car. Who knows? "Moreover, of course, we did recess and give the defense a chanceto get its own expert and to call any expert witnesses that the defense felt might have been fruitful. And that chance was afforded. "Bottom line is I don't see any impairmentof Mr. [Le's] right to a fair trial.” Although the court denied the request for a specialinstruction, the court ruled the defense could address the matter during closing argument. 2. Additional background—E-mail by Defense Witness Duringtrial, defense counsel informed the court that in August 2008 a defense witness sent an e-mailto the district attorney investigator stating that the witness had known Octavius for at least 10 years, that for a time the witness had dated Octavius and that the witness believed Octavius was a habitual liar and lied for no reasonatall. Defense counsel explained that in speaking with the investigator, defense counsel had learned the investigator received the e-mail and had shownit to the prosecutor, who lookedat the e-mail, put it in a box and forgot about it. Defense counsel argued that the 34 prosecutor should have turned the e-mail over to the defense andthat the failure to do so was a violation ofBrady v. Maryland (1963) 373 U.S. 83 [83 S.Ct. 1194] (Brady) and asked the court to conduct a hearing on whether the prosecutor should be sanctioned. The prosecutor responded he had learned about the e-mailed letter from an ex- girlfriend that was recovered during a search of her house; he did not have a copy ofthe e-mail and whenhereceivedit, the e-mail appeared to be duplicative of the information already provided to the defense and the defense had the e-mail and it could be used at trial. The prosecutor also noted he took seriously his obligation to turn over information to the defense as it became available. At a subsequent hearing outside the presence of the jury, the trial court found the prosecutor had failed to comply with his obligationto disclose the e-mailed letter but that no sanctions were warranted becausethe prosecutor had not willfully suppressed the information: "I conclude . . . that there is no Brady violation in this case. I make that conclusion for the following reasons. "J think that the question isn't answered simply by looking at whether the content of the documentbringsit within the Brady doctrine. I think you haveto look at the circumstancesandthe effect in this case. I find, as a matter of fact, that the nondisclosure of this document was inadvertent and that the document wasnotwillfully suppressed. "I note in making that finding that the discovery is some four to 5,000 pages of documents. There are numerous photographs. This was a complex investigation of a cold case. We havejust heard testimony today about howthis investigation was reactivated and beganto heat up again in 2007, somefive years after the actual killing. The case involved gang detectives, homicide detectives, peace officers from other agencies recovering guns andcars, involveddistrict attorney investigators, involved items impoundedas physical evidence under one tag numberor one description numberby the gang detectives, then being transferred and renumbered by homicide detectives. "In my view andit is myfinding that the discovery, frankly, has been managed exceptionally well in a case [this complex] by the district attorney and, frankly, by defense counsel. But there is not even a hint or a scintilla of evidencethat this nondisclosure was anything other than inadvertent. "Moreover, I think we haveto lookat it in light of the other evidence that exists about [Octavius's] credibility. Granted, the bias of a witness and a witness’ credibility is never a collateral matter. However,it certainly cannot be said that this letter . .. was the sole piece of impeaching evidence as to [Octavius] or even, frankly, a significant one. It is a letter from an ex-girlfriend whois upset about pregnancy allegations or rumors or statements made by [Octavius], whom she admittedly dated for some period of time. There is no way to even suggest that a marginal benefit of this in terms of evaluating [Octavius's] credibility is anything more than minor. "I conclude that there is no Brady violation in this case. I certainly don't impose any kind of a Brady-based sanction. I am declining to impose any sanction under the discovery lawsas well, that is, the statutory laws." 3. Governing Law and Analysis "We generally review a trial court's ruling on matters regarding discovery under an abuseofdiscretion standard." (People v. Ayala (2000) 23 Cal.4th 225, 299.) Our Supreme Court has established that " ‘a trial court may, in the exercise ofits discretion, "consider a wide range of sanctions" in response to the prosecution's violation of a discovery order." (Jbid.) In considering whetherthetrial court abusedits discretion, we examine whetherthe trial court's response "was inadequate to dispel any prejudice resulting from the prosecution's conduct." (People v. Robbins (1988) 45 Cal.3d 867, 884, superseded by statute as stated in People v. Jennings (1991) 53 Cal.3d 334, 387, fn. 13.) Asto the fingerprint evidence, we concludethetrial court properly found there wasno discovery violation under Penal Code section 1054 et seq. Indeed, we note that Le does not challenge the findings ofthetrial court that the prosecution did nor willfully suppress the fingerprint evidence, or that onceit discovered the information,the prosecutor immediately turnedit over to the defense. (See § 1054.7 "[If the material and information becomes knownto, or comesinto the possessionof, a party within 30 days of trial, disclosure shall be made immediately . . . ."], italics added.) Here, the record showsthe People's expert uncovered the fingerprint evidence as the expert was preparing totestify at trial. To ensure there was no prejudice, the court granted the defense's request for a five-day continuanceto allow the defense to review the forthcoming report of the People's expert and to conduct their own investigation,if necessary. 37 The record also showsthe defense was awareofthe existence of fingerprint evidence on the beer bottle and chose not to examine that evidence or conduct its own investigation. (See People v. Salazar (2005) 35 Cal.4th 1031, 1048-1049 [noting that "la]lthough the prosecution may not withhold favorable and material evidence from the defense, neither does it have the duty to conduct the defendant's investigation," and further noting that "[i]f the material evidence is in a defendant's possession oris available to a defendant through the exercise of due diligence, then, at least as far as evidenceis concerned, the defendanthasall that is necessary to ensure fair trial, even if the prosecution is not the source of the evidence."].) Underthe circumstances, we concludethetrial court's decision to delay thetrial in order to give the defense an opportunity to investigate the fingerprint evidence, but not to give the requested jury instruction, was a proper exercise of the court's discretion. (See People v. DePriest (2007) 42 Cal.4th 1, 38-39 [concluding trial court properly allowed shoeprint evidence to be admitted shortly before trial because the prosecutor informed both the court and defense counsel of the existence of such evidence immediately after it was acquired and because there was no evidence the acquisition of such evidence was unreasonably delayed, and concluding the trial court did not abuseits discretion in denying the defense's request for a continuance with respect to such evidence because the "record supports the court's determination that defendant had ample time and resources to [investigate the shoe print evidence] after trial began."]; see also People v. Panah (2005) 35 Cal.4th 395, 459-460 [concluding there was nostatutory violation when pathologist 38 prepared on the eve of testimony a new report after reexamining microscopicslides at request of prosecution].) Asto the e-mailed letter sent to the district attorney investigator, Le takes issue with the finding of the trial court that the nondisclosure of this information was inadvertent. However, becausethis finding is supported by substantial evidence in the record, we may not reweigh the evidenceor reappraise the credibility of the witnesses (e.g., the prosecutor anddistrict attorney investigator) and cometo a different finding. (See People v. Kraft (2000) 23 Cal.4th 978, 1053; People v. Bradford (1997) 15 Cal.4th 1229, 1329.) In any event, we concludethe trial court properly found there was no Brady violation in connection with the e-mail. "'There are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either becauseit is exculpatory, or becauseit is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.’ [Citation.]" (See People v. Salazar, supra, 35 Cal.4th at p. 1043.) Here, Le cannotsatisfy all three elements. Assuming the e-mail was exculpatory, there is no evidence the prosecution suppressed this information as the defense obtained it from another source and merely confirmed the prosecutor had received it at some point during the investigation. "Although the prosecution may not withhold favorable and material evidence from the defense, neither does it have the duty to conduct the defendant's investigation for him [or her]. [Citation.] If the material evidenceis ina 39 defendant's possession or is available to a defendant through the exercise of due diligence, then, at least as far as evidence is concerned, the defendanthasall that is necessary to ensure fair trial, even if the prosecution is not the source of the evidence. [Citations.] Accordingly, evidence is not suppressed unless the defendant was actually unaware ofit and could not have discoveredit ' "by the exercise of reasonable diligence."'’ [Citations.]" (People v. Salazar, supra, 35 Cal.4th at pp. 1048-1049.) There also is no evidence Le wasprejudiced by the prosecutor's failure to produce the e-mailed letter to the defense. "Prejudice, in this context, focuses on the 'materiality of the evidenceto the issue of guilt and innocence.’ [Citations.] Materiality, in turn, requires more than a showingthat the suppressed evidence would have been admissible [citation], that the absence of the suppressed evidence made conviction ‘morelikely’ [citation], or that using the suppressed evidenceto discredit a witness's testimony 'might have changed the outcomeofthetrial’ [citation]. A defendant instead 'must show a "reasonable probability of a different result."' [Citation.]" (People v. Salazar, supra, 35 Cal.4th at p. 1043.) Thetrial court in the instant case correctly noted the e-mail did not provide any new information regarding Octavius and/orhis credibility (or lack thereof). For this separate and independentreason, even if the e-mail was exculpatory and evenif the People suppressed it, we concludethe trial court properly found there was no Brady violation because Le cannotestablish he was prejudiced by its suppression. F. Evidence Pathammavong Was Involvedin a Shooting in 2003 40 Le next contendsthe prosecutor engaged in misconduct by misrepresenting that the defense hadelicited certain details from Pathammavong regarding a 2003 shooting wheninfactit was the prosecutor who had obtained the information from this witness. Le further contends the prosecutor's misconduct was "deceptive and reprehensible and infected the trial with such unfairness as to make[his] conviction a denial of due process." He also contends thetrial court erred whenit gave a curative instruction to the jury regardingthis issue. |. Additional Background During cross-examination, defense counsel asked Pathammavong about a shooting in 2003 that took place on ComstockStreet (e.g., the Comstock shooting). Specifically, Yang's counsel asked Pathammavong whether gangsretaliate against other gang members for cooperating with authorities. After Pathammavong responded, "Yes," counsel then asked, "Andisn't that—your experienceis really based on the fact that you yourself were involved in a shooting on Comstock Street in 2003 for the same reason, correct?" Thetrial court sustained the prosecution's objection on the grounds the question was improper impeachment. Outside the presence of the jury, the prosecutor expressed some concern about the questioning of Pathammavong by Yang's counsel that made it appear that Pathammavong had been convicted of another shooting, which wasnot true. The prosecutor reminded the court that in a motion in limine he had asked that Pathammavong's prior conviction be referred to as "assault with a firearm, and attendant gang allegations." 4] Counsel for Yang arguedthat the jury should hear that Pathammavong admitted as part of his plea to beingin the car in the Comstock shooting, when two younggirls were wounded. Thetrial court disagreed, finding this argument "border[ed] on specious" because counsel was impermissibly trying to show that if Pathammavong was involvedin a previous drive-by shooting, he also may have committed thepoolhall shooting. The next day, the prosecutor asked for a curative instruction based on the fact that, as he rememberedit, Pathammavong had been asked by defense counsel whether he shot twolittle girls in the Comstock shooting and that such questioning was beyondthe court's in limine rulings. After a recess, Yang's counsel informedthe court that he had reviewed the court reporter's "rough notes" and determined that defense counsel had not asked Pathammavong about shooting twogirls, as represented by the prosecutor. Thetrial court accepted defense counsel's representation, but recalled the issue of the shooting of the two girls on Comstock Street had come up on a few occasions. The trial court therefore ruled to give the proposedcurative instruction proffered by the prosecutor, which providedin part: "A witness's criminal history—this goes for all witnesses—is relevant for you as jurors in assessing the credibility of the testimony of a witness. As I will more fully instruct you at the conclusion of the trial, you may give a witness's criminal history whatever weight you believe it deserves in assessing the credibility. "There will be an instruction that talks about prior convictions and how thatis something that you can consider in determining the believability of a witness, and you 42 decide how much weight you wantto give it based on all of the circumstances, including the conviction. "You are instructed that, by stipulation, the parties have agreed that Mr. Pathammavongwas,in fact, convicted in 2004. He was convicted of conspiracy to commit an assault with a firearm, and there was an attendant gang allegation attached to this charge. This charge of which he was convicted in 2004is a felony. "Also, of course, he was convictedin 2009 of being an accessory after the fact of murder, along with a gang allegation, and that, as you heard, arose from his participation in the events about which you are hearing testimony inthistrial. "Please, ladies and gentlemen, you are instructed to disregard any other assertions or suggestions that may have been madeorarisen yesterday with regard to Mr. Pathammavong's alleged role in the 2004 crime, the crime for which he was convicted in 2004. And youare likewise instructed to disregard any suggestion asto the details of that crime. "You are, however, of course, entitled to consider the facts that he was convicted of that conspiracy to commit an assault with a firearm, along with a gangallegation. "Counsel will be allowed to and entitled to comment onthis instruction and that conviction to the extent they see fit in their closing arguments. "If this seems to be coming to you in a vacuum,just makea note ofit and giveit the weight to which you believeit's entitled during your deliberations after hearing the arguments of counsel and the instructions of the court." 43 It is this instruction that Le contends violated his due process rights to a fairtrial. 2. Analysis Weneednot determine whether the prosecution engaged in any misconduct or whetherthetrial court erred in giving the curative instruction because even if we assume the record supported such conclusions, we nonetheless would conclude any conceivable error, misconduct or deficiency was harmless by any standard. (See People v. Sandoval (1992) 4 Cal.4th 155, 193-194 [alleged prosecutorial misconduct harmless where there was no reasonably possibility the jury would have reached a more favorable verdict had the misconduct not occurred].) Indeed, as noted by Yang's counsel during trial and the trial court, the curative instruction at issue here covered the same general subject matter that was covered by the instructions given at the conclusion of testimony. In addition, Le does not contendthat the trial court's curative instruction was incorrect under the facts or the law. Rather, the instruction merely cautioned the jurors that the facts underlying Pathammavong's conviction in 2004 were not to be considered. Finally, although Le contendsthe instruction cast the defense in a "negative light,” our review ofthe instruction showsit was content neutral. The record also showsthe trial court incorporated changes to the proposed instruction suggested by the defenseto ensure it was "more passive." If anything, the instruction may haveassisted the defense morethan the People because it reminded the jury that Pathammavong had been convicted in 2004 of conspiracy to commit assault with a firearm and a gang allegation, 44 andthat the jury could consider that conviction in assessing his credibility (or lack thereof). Le's speculation that the curative instruction prejudiced him is insufficient to establish prejudice. (See People v. Fairbank (1997) 16 Cal.4th 1223, 1241 [a defendant's proof of prejudice must be a "demonstrablereality" and not simply speculation].) G. Third Party Culpability Defense and Ineffective Assistance ofCounsel Le next contends there wassufficient evidence of a third party culpability defense suchthat the trial court had a sua sponte duty to instruct the jury on that defenseor, alternatively, his counsel should have requested such an instruction. Regarding his contention the trial court had a sua sponte duty to instruct the jury on this defense, as Le recognizes our high court rejected this same argument in People v. Abilez (2007) 41 Cal.4th 472. There, defendant was convicted of several offenses, including murdering and sodomizing his mother. Attrial, defendant's defense wasthat his cousin committed the crimes. On appeal, defendant contendedhisrights to a jurytrial and to due process were violated whenthetrial court failed to instruct the jury that he did not need to prove his innocenceorthat his cousin was guilty, but merely raise a reasonable doubtas to his own guilt. (/d. at p. 517.) Because defendant did not request such an instructionat trial, his contention wasthat the trial court had a sua sponte duty "to instruct the jury how the burden of proof applies to third party culpability." (Jbid.) In rejecting this contention, our Supreme Court in People v. Abilez, supra, 41 Cal.4th at page 517 ruled that although a criminal defendant may usea third party culpability defense to raise a reasonable doubtas to his or her guilt, and the trial court 45 "has a duty to instruct the jury 'sua sponte on general principles which are closely and openly connected with the facts before the court[,]'" there is "no special instruction on third party culpability . . . necessary to apprise the jury of the pertinent legal principles” where the jury was properly instructed on the defendant's presumed innocence and the requirementthat the jury find him guilty beyond a reasonable doubt. The court reasoned that "[h]ad the jury entertained a reasonable doubt that defendant sodomized and killed the victim and instead believed [his cousin] committed those crimes, presumably it would have acquitted defendant." (/bid.; see also People v. Gutierrez (2009) 45 Cal.4th 789, 823-824 [concludingtrial court did not err by failing to instruct the jury, sua sponte, regarding third party culpability].) Similar to the jury in People v. Abilez, here the jury was properly instructed on the presumption of innocence, the People's burden of proof, and the concept of reasonable doubt. If the jury believed Pathammavongor another individual committed the shooting at the pool house, presumably it would have acquitted Le. We thus concludethe jury instructions did not undermine the presumption of innocenceor ease the prosecution's burden ofproof. 46 Without legal support, Le nonetheless contends that becausethetrial court also instructed the jury with CALCRIM No.373, 12 the trial court erred by failing to instruct sua sponte onthird party culpability. We disagree. A third party culpability instruction focuses on the significanceofa third party's alleged past acts offered as exculpatory evidence during a criminal prosecution of the defendant. In contrast, CALCRIM No. 373 focuses on the significance of the facts that (1) the third party may notbe currently participating in the criminal prosecution ofthe defendant, and/or (2) may not have been, or might notbe, criminally prosecuted. (See People v. Farmer (1989) 47 Cal.3d 888, 918 [like its predecessor, CALCRIM No.373 "doesnottell the jury it cannot consider evidence that someone else committed the _ crime," but ratherit "merely says the jury is not to speculate on whether someoneelse might or might not be prosecuted."], disapproved on other groundsasstated in People v. Waidla (2000) 22 Cal.4th 690, 724,fn. 6, italics omitted.) We thus conclude the fact that CALCRIM No. 373 instructed on an issue irrelevantto third party culpability did not impose upon the trial court an otherwise 12 CALCRIM NO.373, as given, provides: "[T]he evidence shows that another person may have been involved in the commission ofthe crimes charged against these defendants. There may be many reasons why someone who appearsto have been involved might not be a co-defendantin this particular trial. You must not speculate about whetherthat other person has beenorwill be prosecuted. Your duty is to decide whether the defendants here on trial committed the crimes charged with which they are charged. [§] This instruction does not apply to the testimony of Mr. Pathammavong." 47 nonexistent duty to instruct sua sponte on such culpability. (See People v. Abilez, supra, 41 Cal.4th at p. 517.)13 Alternatively, Le contends he received inuffective assistance of counsel because defense counsel failed to ask for a third party culpability defense instruction. The burden of proving a claim of ineffective assistance of counsel is on the defendant. (People v. Camden (1976) 16 Cal.3d 808, 816.) " "In order to demonstrate ineffective assistance of counsel, a defendant must first show counsel's performance was "deficient" because his [or her] "representation fell below an objective standard of reasonableness.. . under prevailing professional norms." [Citations.] Second, [the defendant] must also show prejudice flowing from counsel's performanceor lack thereof. [Citation.] Prejudice is shown whenthere is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability weis a probability sufficient to undermine confidence in the outcome. Cn re Harris (1993) 5 Cal.4th 813, 832-833; accord, People v. Ledesma (1987) 43 Cal.3d 171, 216- 217.) Weneednot determine whether the defense's decision not to ask for a third party culpability instruction fell below an objective standard of reasonableness because wefind 13 Wealso reject Le's unsupported argument that because the trial court instructed the jury with CALCRIM No. 334, the court was required to give sua sponte an instruction onthird party culpability. CALCRIM No.334 states the rule provided in Penal Codesection 1111 that a defendant cannot be convicted by the testimony of an accomplice unless it is corroborated by other evidence. The rule exists because the testimony of an accompliceis viewed with a certain amount of caution. (See People v. Felton (2004) 122 Cal.App.4th 260, 267-268.) In any event, it also is clear from the record that anyerror in failing to instruct on third party culpability was harmless because the jury was properly instructed that the People had to prove Le's guilt beyond a reasonable doubt and the jury knew the defense believed another person (e.g., Pathammavong, who bragged about being involved in the shooting after the fact) committed the drive-by shooting. (See People v. Earp (1999) 20 Cal.4th 826, 887.) 48 no prejudice. As already mentioned, the jury was properly instructed on the presumption of innocence, the People’s burden of proof and the concept of reasonable doubt. In addition, the record clearly shows that the jury knew the defense believed individuals other than Le and Yang(e.g., Pathammavong) committed the drive-by shooting. Ifthe jury believed a third party and not appellants committed the crime, presumably it would have acquitted one or both of appellants of the crime. I Yang's Appeal\4 A. Other Crimes Evidence Yang contendsthe trial court abusedits discretion when it admitted the testimony of Octavius that Yang participated in at least one uncharged shooting by TOC at AC targets in order to prove motive and the gangallegation. 14 This court in September 2010 granted Yang's unopposed motion to augmentthe record to include two rulings madeby the judge in connection with motions in limine: a transcript of a tape recording (e.g., People's exhibit 84) played to the jury, and the reporter's transcript of opening statements to the jury. , 49 1. Additional Background Duringpretrial proceedings, the trial court ruled to admit two or perhapsthree incidents, and exclude oneincident, regarding uncharged shootings involving TOC,as testified to by Octavius. In an incident described by Octavius in 1998, members ofTOC had gathered at the poolhall andin the backalley area of the pool hall for a party. At some point, some AC gang members appeared and Le confronted them and asked them to leave. The AC membersleft, but returned and fired shots at TOC gang membersthathit nobody. Octavius described another incident in 2002 when Yang, Le and other TOC gang members wereshot at by what they believed were AC members at Crown Point in San Diego. In the weeksthat followed, TOC responded by shooting at some AC gang members’ houses in Mira Mesa. Nobody wasinjuredin either shooting. Octavius said Yang was with him when they shot at the houses. Finally, another incident took place in 2005 regarding a gang fight and shooting in which Le was convicted. In admitting the incidents in 1998 and 2002 but excluding the 2005 incident, the trial court ruled as follows: "It seems to me that these questions need to be addressed underprinciples of relevance and [Evidence Code] section 352 and [Evidence Code] section 1101(a) and (b), if applicable. I'll do that in reverse order. 50 "Evidence Codesection] 1101 is the rule that says that evidence of a person's character is normally not admissible to prove his conduct on a specific occasion. 1101(b) is sometimes referred to as an exceptionto that rule. It's really not, if you read it. It's an elaboration ofthe rule. "It says, in effect, if you're using evidence that might be considered otherwise character evidence to prove someotherrelevantissue, then it's not going to be kept out by subdivision a. "The veryfirst one on the list that weall learned in law school was motive,of course. Motive, intent, identity, common plan or scheme, absence of mistake, those things. "It seems to me that to the extent any of this might be 1101(b) evidence, it comes under the motive exception. I think there's necessarily an overlapping of the pools between character evidence, which is inadmissible under [subdivision] a, and motive evidence, which is such evidence offered for a different reason other than to prove conduct on a specified occasion. "I had not focused on the point until [the prosecutor] madeit, too, that whenit's a bad act of the Asian Crips,it's really not 1101(b) evidence as to these gentlemen. ButI think that point is well taken. I don't think that section 1101(a) or (b) precludes the admission ofany of this evidenceifit's otherwise relevant and passes muster under {Evidence Code] section 352. 51 "Let's step back from the trees again and look at the forest. This is clearly a gang case. It's steeped in the gang culture. J think the evidence is going to be that the Tiny Oriental Crips [TOC] and the Asian Crips [AC] were both aroundfor a long time, certainly before 1998. I think it's the gang culture, just as it is with the Capulets and the Montagues [in Romeo and Juliet by William Shakespeare], that these grudges are nursed and kept alive for many years. And I thinkthat a four-year gap doesn't preclude it from being relevant for motive today. "It seems to methat the question of motive answers the question of relevance. There's actually a jury instruction that says having a motive may tend to show that the crime was committed or that somebody did it. Not having a motive tends to show the reverse. So it's clearly relevant. "Given the fact that this case will be steeped in the gang culture and the relevance that attends to proofof the gangallegation,I think that [Evidence Code] section 352is not a bar either. "My ruling is going to be that incident 3, that is, the facts of an earlier shooting by the Asian Crips at the poolhall, is admissible. I'm told that's a Tiny Oriental Crip/Asian Crip dispute that was believed to be behindthat. "{Incidents] 4 and 1, as we have beencalling them,are likewise admissible. If they're the samething, so beit. And if they're different, they still each involve one gang committing an act of violence towards the other and then the other committing an act towardsthe one, and I think that those are relevant given the fact that my reading ofthe 52 preliminary hearing transcript was consistent with what the prosecutor has said; thatis, that I think that if a jury accepts the People's evidence, they would be finding that Mr. Le and Mr. Yang wentoverthere [to Mira Mesa] to go after Asian Crips, and the fact thatit was[another gang] that got hit doesn't alter the relevance of that motive. "The facts of the 2005 event leading to Mr. Le's conviction for Penal Code section 245 are not going to be admissible... ." 2. Governing Law and Analysis Asthe trial court recognized, evidence of a defendant's prior crime or bad act is generally inadmissible to prove a defendant's bad character or propensity to commit the charged offense. (Evid. Code, § 1101, subd. (a).15) However, such evidence may be admissible when relevant to prove somerelevant fact other than criminal propensity, such as intent, motive, identity or the absence of mistake or accident. (Evid. Code, § 1101, subd.(b).) Whenreviewing the admission of evidence of other offenses, a court considers: (1) the materiality of the fact to be proved or disproved, (2) the probative value of the other crimes evidence to prove or disprove the fact, and (3) the existence of any rule or policy requiring exclusion even if the evidenceis relevant. (People v. Thompson (1980) 15 Evidence Code section 1101 provides: "(a) Except as providedin this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person's characteror a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion. [{{] (b) Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove somefact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendantin a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act. [] (c) Nothing in this section affects the admissibility of evidence offered to support orattack the credibility of a witness." 53 27 Cal.3d 303, 315.) A court's decision to admit other crimes evidence is reviewed for abuse of discretion. (People v. Cole (2004) 33 Cal.4th 1158, 1195; People v. Ewoldt (1994) 7 Cal.4th 380, 405.) In the instant case, the record showsthetrial court carefully considered whetherto admit the "other crimes" evidence. We concludethetrial court properly exercisedits discretion whenit ruled to admit two(or three, if two of them were not identical) of the incidents and exclude one of them. The twoincidents admitted into evidence clearly wentto the issue of motive for the pool hall shooting, given that both of the prior incidents involved TOC gang members shooting at other gangs including AC members. In addition, both of these incidents were relevant to the gang allegations chargedin this case, as also found bythetrial court. Wefurther concludethetrial court did not err and abuseits discretion whenit found the probative value of this other crimes evidence involving TOC and AC gang members wasnot "substantially outweighed" by the probability that its admission would "create substantial danger of undue prejudice" to Le and Yang, particularly given the significance of the role the gangs played in this case and given the gang allegations the People were required to prove. (See Evid. Code, § 352; see also People v. Zapien (1993) 4 Cal.4th 929, 958 [" 'The prejudice [that Evidence Code section 352] is designed to avoid is not the prejudice or damageto a defense that naturally flows from relevant, highly probative evidence.’ "]; People v. Wilson (1992) 3 Cal.4th 926, 938 [atrial court is vested with broad discretion in determining the admissibility of evidence and its exercise 54 of discretion under Evidence Codesection 352 will not be disturbed on appeal absent a clear abuse]; People v. Butler (2005) 127 Cal.App.4th 49, 60 [concludingtrial court did not err when it admitted into evidence an altercation between defendant and a group of people a week before defendant's unprovokedattack and killing of a member of that same group]; People v. Zepeda (2001) 87 Cal.App.4th 1183, 1212 [concluding trial court did not err whenit admitted evidence of defendant's involvementin a prior gang-related incidentthat led to a shooting to prove intent and malice when defendantkilled a rival gang member for gang-related purposes]; compare, People v. Kipp (2001) 26 Cal.4th 1100, 1121 [evidenceis prejudicialif it uniquely tends to evoke an emotionalbias against the defendant without regard to its relevance on material issues].) Finally, the record showsthe jury was properly instructed that it could consider the other crimes evidence only for limited purposes and not to show Yang or Le were personsofbad character, and that it could not consider this evidence atall unless the prior acts were shown by a preponderanceofthe evidence (discussed in more detail post). The jury is presumed to have followedthis instruction. (People v. Delgado (1993) 5 Cal.4th 312, 331.) For this separate and independent reason, we conclude Yang did not suffer "undueprejudice" for purposes of Evidence Code section 352 in connection with the admissibility of this other crimes evidence. B. Gang Allegation and CALCRIMNo. 375 55 Yang next contends CALCRIM No.375, as given bythetrial court, allowed the jury impermissibly to find the gang allegation true based on the preponderanceof the evidence standard. 1. Additional Background Withoutobjection by any party,!© thetrial court instructed the Jury pursuantto CALCRIM No.375 as follows: "The People presented evidence that a defendant committed another offense that . was not chargedin this case. "You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant, in fact, committed the uncharged offense. Proof by a preponderanceofthe evidenceis a different burden of proof than proof beyond a reasonable doubt. A fact is proved by a preponderanceofthe evidenceif you conclude that it is more likely than notthat the fact is true. [{]... [9] "If the People have not met this burden ofpreponderanceofthe evidence with respectto this evidence about which I am speaking, you mustdisregard the evidence entirely. 16 Because Yangfailed to raise this issue attrialit is forfeited on appeal. (See People v. Moore (2011) 51 Cal.4th 1104, 1139-1140; see also People v. Hudson (2006) 38 Cal.4th 1002, 1011-1012 [" ‘Generally, a party may not complain on appeal thatan instruction correct in law and responsiveto the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.' "].) Nonetheless, we reach the merits of the issue to avert any claim ofineffective assistance of counsel. 56 "If you decide that the defendant committed the uncharged offense, you may , but are not required to considerthat evidence for the limited purpose of deciding whether or not the defendant had a motive to commit the offenses alleged in this case. "Do not considerthis evidencefor any other purpose exceptfor the limited purpose ofdetermining the gang allegation under Penal Code section 186.22. "Do not conclude from this evidence that the defendantor either of them had a bad character or is simply disposed to commitcrime. "If you concludethat a defendant committed the unchargedoffense, that conclusion is only one factor to consider along withall the other evidence. It is not sufficient by itself to prove that the defendantis guilty of any of the crimesor allegations charged. The People muststill prove each charge and allegation beyond a reasonable doubt." (Italics added.) Yang claimsthe italicized portion of the above instruction directed the jury to use the preponderanceofthe evidence standard to findtrue the gang enhancement under section 186.22. 2. Governing Law and Analysis " ‘IT]he correctness ofjury 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.’ [Citations.]" (People v. Carrington (2009) 47 Cal.4th 145, 192.) "In reviewing any claim ofinstructional error, we must consider the jury instructions as a whole, and not judgea single jury instruction in artificial isolation out of the context of 37 the charge andtheentire trial record. [Citations.]" (People v. Dieguez (2001) 89 Cal.App.4th 266, 276.) CALCRIM No.375,as instructed by thetrial court, itself addresses and eliminates Yang's argument whenit states that ifthe jury concludes the defendant committed the uncharged offense, that conclusion "is not sufficient by itself to prove that the defendant is guilty of any of the crimes or allegations charged" and that the People "muststill prove each charge andallegation beyond a reasonable doubt." (Italics added.) In addition, the jury was properly instructed with CALCRIM No.1401, regarding the gang enhancement, andtold, "The People have the burden of proving each allegation beyond a reasonable doubt. If the People have not met this burden, you must find that the allegation has not been proved." The court also gave CALCRIM No.220, defining reasonable doubt and explaining the People's burden of proof, and CALCRIM No.224, instructing the jury how to evaluate circumstantial evidence and the conclusions that may be drawn from that evidence, and explaining that before the jury could rely on such evidenceit had to conclude that the People proved each fact beyond a reasonable doubt. In the context of the overall charge to the jury, we conclude there was no error whenthe trial court instructed the jury with CALCRIM No.375. (See People v. Moore, supra, 51 Cal.4th at p. 1140; People v. Carrington, supra, 47 Cal.4th at p. 192.) C. Exclusion of Wiretap Evidence Yang also contendsthetrial court erred and abusedits discretion whenit refused to admit two wiretapped calls involving Yang. 58 1. Additional Background During cross-examination of the investigating officer primarily responsible for obtaining the wiretap order, Yang's counsel asked whether the officer was familiar with wiretap call 322, made on August 9, 2007, between Yang and Octavius, in which Yang said, "They hit Vanessa's house aboutthe shit thatBo [Pathammavong] did." When the officer respondedin the affirmative, Yang's counsel then asked about call 330 made on that same day between Yang and Octavius. With that question, the prosecutor objected and asked for a sidebar conference. Outside the presence ofthe jury, counsel for Yang noted that call 330 involved a search warrant discussion between Yang and Octavius which provided: "He [Yang] says: They gonnatry and catch you slipping. They fucking—theytry to bring up the shit, you know,about Bo andshit, dog. They will bring up that shit about Bo because I guess--. and then Mr. [Octavius] Soulivong says: You don't have to worry about that or worry aboutit though. And Down Yangsays: Nah,I ain't worrying, dog. No, I believe you, dog. I just, you know—youain't going to snitch on Bo or anybody. Basically you slipped. But you know theyare going to try to catch you slipping." Yang's counsel arguedcall 330 was relevant because it showedthat Pathammavongwasthe shooter and explained Yang's state of mind including the reason he considered running away, namely because Yang believed someoneelse was the shooter but the gun used in the shooting belongedto his brother. 59 Thetrial court ruled the statements were hearsay and not subject to any hearsay exception, including state of mind, and were not an admission by a party opponent or a prior inconsistent statement. Thetrial court sustained the prosecutor's objection and instructed the jury to disregard the testimony aboutcall 322. 2. Governing Law and Analysis Under Evidence Code section 1200, subdivision (a) " "Hearsay evidence’is evidence of a statement that was madeother than by a witness while testifying at the hearing andthat is offered to prove the truth of the matter stated." Except as provided by law, hearsay evidence is inadmissible. (Evid.Code, § 1200, subd. (b).) Assuming for purposes of argumentonly the trial court erred by excluding wiretap calls 322 and 330 either as non-hearsay or as an exception to the hearsay rule, we conclude that error was harmless. (See People v. Partida (2005) 37 Cal.4th 428, 439 [the admission of evidence, even if erroneous understate law, results in a due process violation only if it makes the trial fundamentally unfair," and absent "fundamental unfairness, state law error in admitting evidence is subject to the traditional [Peoplev.| Watson [(1956) 46 Cal.2d 818, 836] test."]; see also People v. Hall (1986) 41 Cal.3d 826, 834 ["As a general matter, the ordinary rules of evidence do not impermissibly infringe on the accused's right to present a defense."].) First, the record is replete with evidence of the defense's theory that Pathammavongwasthe shooter, including evidence of Pathammavong bragging about 60 the shooting after the fact. That the defense believed Pathammavong wasthe shooter was already before the jury without regard to wiretap calls 322 and 330. Second, the record shows other wiretap calls the jury did hear covered the same general subject matter as calls 322 and 330. In one such call, Yang talked about the "gun that was used for Bo[] [Pathammavong's] shit," and in another Octavius referred to the "Toun] that "Bo used." Thus, we conclude it was not reasonably probable that a result more favorable to Yang would have been reached absentthetrial court's alleged error in failing to admit the two wiretap calls. (See People v. Watson, supra, 46 Cal.2d at p. 836.) D. Prosecutorial Misconduct 1. Additional Background During closing, Yang's counsel argued to the jury that the People hadfailed to proffer any witnesses to corroborate the testimony of Octavius, despite his testimony that there were others present at his brother Orlando's house when Le and Yangdiscussed the shooting after returning to the house that samenight. In rebuttal, the prosecutor in response argued: "And much has been madeof, well, why only Octavius [came] andtestifLied] about that conversation at that house[.] I think common sense answers that question,if not all the gang evidence you heard. Being in the gang world and indoctrinated as you are now,do youreally think all those hard-core TOC guys were going to cometo law enforcementandsay, ['Y]eah, I will testify against ... my gang. Sure. Let meat ‘em. 61 Loveto doit.['] Is it really what you expected wasfor the People to bring in this parade of hard-core bangersto testify against these hard-core bangers? "Or—nowthe defense has no burden. It is my burden here to provethis case. But, at the same time, they have the ability to call witnesses. They have the ability to test evidence. They have theability to do all those things. Could they havecalled in people from Orlando's house? [Yang's] friends? [Le's] friends to comein and, as Octavius told us, you lie for the gang. That's how it works. Could they have brought them in to say, ['H]ey, I was there, and this didn't happen[."] Sure." Defense counsel objected to this argumentto the "extentit shifts the burden." The court overruled that objection, and the prosecutor continued, "You didn't have anybody coming in and saying, [']I was with these two. They didn't do it.[']" 2. Governing Law and Analysis When,as here, the alleged misconduct " 'focuses on comments made by the prosecutor before the jury, the question is whetherthere is a reasonable likelihood that the jury construed or applied any of the complained-of remarksin an objectionable fashion.’ [Citations.] A prosecutor is given widelatitude during closing argument. The argument may be vigorousas longasit is a fair comment on the evidence, which can include reasonable inferences or deductions to be drawn therefrom. '"A prosecutor may ‘vigorously argue his [or her] case andis not limited to "Chesterfieldian politeness"' [citation], and he [or she] may'use appropriate epithets ....'" [Citations.]' [Citation.] 'A defendant's conviction will not be reversed for prosecutorial misconduct. . . unlessit is reasonably probable that a result more favorable to the defendant would have been reached without the misconduct.' [Citation.]" (People v. Harrison (2005) 35 Cal.4th 208, 244.) " ‘It is now well established that although Griffin [ v. California (1965) 380 U.S. 609, 85 S.Ct. 1229] prohibits reference to a defendant's failure to take the stand in his [or her] own defense,that rule "does not extend to comments on the state of the evidence or on the failure of the defense to introduce material evidenceorto call logical witnesses. [Citations.]" [Citations.]'" (People v. Lewis (2009) 46 Cal.4th 1255, 1304.) Here, Yang wisely does not argue that the prosecutor's comments aboutthe witnesses the defense did not call improperly drew attention to Yang's decision not to testify. Instead, Yang argues the above comments by the prosecutor improperly switched the burdenofproof to him to establish innocence. Yang relies upon People v. Gaines (1997) 54 Cal.App.4th 821 to support his contention. In People v. Gaines, the prosecutor commented not only upon the absence of an alibi to corroborate defendant's version of events, but further asserted that the alibi's testimony would have conflicted with the testimony of defendant because he allegedly "slipped and he told some untruths" while on the witness stand. (People v. Gaines, supra, 54 Cal.App.4th at p. 824.) According to the prosecutor in People v. Gaines, the defensedid not call the absent witness, despite the fact that witness had beenpresentat the trial, because the witness would have impeached defendant's story. (/bid.) The court 63 determined the prosecutor's conduct denied defendant his Sixth Amendmentrights to confrontation and cross-examination. (/d. at p. 825.) In the instant case, the prosecutor's comments were made in the context of explaining to the jury how difficult it is in a gang case to convince a gang memberto come forward and cooperate with law enforcement and ultimately testify against the gang and/or its members. The prosecutor's remarks were in response to the argumentofthe defense regarding the People's failure to call additional witnesses to corroborate the testimony of Octavius. Unlike the prosecutor in People v. Gaines, the prosecutor in the instant case did not argue to the jury what the substance of the absent witnesses’ testimony would have been, howthat testimony,if given, would have conflicted with the testimony provided by appellants, neither of whom, in any event, testified in the instant case, or how that testimony underminedtheir case. Thus, we conclude People v. Gaines is inapposite and Yang wasnot denied his Sixth Amendmentright to confront and cross- examine witnesses. il The People's Cross-Appeal In their cross-appeal, the People contendthetrial court erred in staying the 10-year section 12022.5, subdivision (a)(1) enhancement to count 4. They contendthat thetrial court had discretion to treat the gang enhancementunder section 186.22, subdivision (b)(1) as a "serious offense" within the meaning of section 1192.7, subdivision (c)(31), as opposed to a "violent felony" for purposes of section 667.5, subdivision (c)(8). They 64 further contend that ifthe trial court had properly exercised that discretion, the two enhancements would not have conflicted and been subject to the California Supreme Court decision of People v. Rodriguez (2009) 47 Cal.4th 501, as foundbythetrial court. Briefly, in People v. Rodriguez defendant fired several shots at three rival gang members. The jury convicted defendant of three counts of assault with a firearm and also foundtrue the allegations defendant (i) personally used a firearm (§ 12022.5, subd. (a)) and (ii) committed a violent felony to benefit a criminal street gang (§ 186.22, subd. (b)(1)(C)). With respect to each offense, the trial court imposed the firearm and gang enhancement. (People v. Rodriguez, supra, 47 Cal.4th at pp. 504-505.) Our Supreme Court reversed and remandedthe case for resentencing. (People v. Rodriguez, supra, 47 Cal.4th at p. 509.) In so doing, it held that imposing both enhancements for defendant's use ofa firearm in the commission of a single offense violated section 1170.1, subdivision (f), which provides: "When two or more enhancements may be imposed for being armed with or using a dangerous or deadly weaponor firearm in the commission of a single offense, only the greatest of those enhancementsshall be imposed forthat offense. This subdivision shall not limit the imposition of any other enhancements applicable to that offense, including an enhancementforthe infliction of great bodily injury." (Italics added.) The People contend that People v. Rodriguez does not govern the instantsituation because unlike the situation there, in the instant case the gang enhancementin count 4 was "generically [pled] and proved undersection 186.22, [subd.] (b)(1) without a gun use 65 allegation and without such a finding madeby thejury.” According to the People, under section 1170.1, subdivision (f) the "greatest" of the two enhancements was for gun use under section 12022.5 because that enhancementnetted five more years in prison than the difference between the gang use enhancementfor a "serious" (e.g., five-year additional term under section 186.22, subdivision (b)(1)(B)) as opposedto a "violent" felony(e.g., 10-year term additional term under section 186.22, subdivision (b)(1)(C)). Thus, accordingto the People,if the trial court had merely imposed the 10-year sentence under section 12022.5 and the five-year sentence under 186.22, subdivision (b)(1), the two enhancements would not have conflicted with the dual use prohibition of section 1170.1, subdivision (f) as discussed in Peoplev. Rodriguez, supra, 47 Cal.4th at page 509. Yang therefore would have been sentenced to 24 years in prison under count4 as opposedto the 19 years he received. Althoughthe People attemptto distinguish People v. Rodriguez on thebasis that the gang enhancementin the instant case was generically pled and there was no gun use allegation or finding madebythe jury in connection with that enhancement, we conclude this is a distinction without a difference. That thetrial court may haveexercisedits discretion and treated the gang enhancementas a mere "serious felony" and not as a "violent felony" for purposes ofsection 186.22, subdivision (b)(1), as the People contend, does not changethe fact that under either scenario the gang enhancement involved Yang's use ofa firearm, which we conclude makes People v. Rodriguez applicable. 66 Wetherefore conclude the trial court did not err when it foundit lacked the discretion under the facts of this case to imposeboth the personal gun use enhancement under section 12022.5, subdivision (a) and the gang enhancement undersection 186.22, subdivision (b)(1)(B) or (b)(1)(C). 17 DISPOSITION The judgment of convictions of Le and Yang is affirmed. BENKE,J. WE CONCUR: McCONNELL,P.J. McDONALD,J. 7 In support ofthis argument, the People rely on People v. Robinson filed on October 28, 2011. However, our Supreme Court granted review of People v. Robinson on February 15, 2012, and ordered the matter transferr ed to the Court of Appeal, First Appellate District, Fifth Division, with directionsto vacateits decision and reconsider the cause in light of United States v. Jones (2012) 565 U.S.__ [132 S.Ct. 945]. (See People v. Robinson $1 98522.) 67
