P. v. Bay

Filed 10/30/06 P. v. Bay CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from a judgment of the Superior Court of Los Angeles County, Richard R. Romero, Judge. Affirmed with directions.

Mark D. Lenenberg, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Joseph P. Lee and Karen Bissonnette, Deputy Attorneys General, for Plaintiff and Respondent.

____________________________________

Jammies Bay appeals from the judgment entered following a jury trial in which he was convicted of carjacking, robbery, and first degree murder, with further findings that he intentionally discharged a firearm during the commission of the murder and that the offense was committed for the benefit of a criminal street gang. Defendant contends there was insufficient evidence to support his convictions, that the convictions must also be reversed based on prosecutorial misconduct and trial counsel’s ineffectiveness in failing to request an adequate instruction on immunized testimony, that the gang finding must be reversed because it was based on evidence admitted in violation of Miranda^[1] and the hearsay rule, and that a probation fine was improperly imposed. The Attorney General concedes there was no authority for the probation fine and asserts that the abstract of judgment should be corrected to reflect that the gang enhancement requires defendant to serve a minimum of 15 years on his murder conviction. We affirm the judgment and order that the probation fine be stricken and the abstract of judgment be amended to reflect the gang finding.

BACKGROUND

Defendant and Micah Eddines were friends. Defendant belonged to the Asian gang, the Suicidals. Eddines, who is of mixed Asian and African-American ancestry, had once been a member of the Asian Boys gang. Eddines drove a white van with a distinctive marking on the side. He also used the van as his living quarters.

On September 24, 2004, police officers stopped the van while it was being driven by Eddines. Defendant was one of several passengers inside.

Carjacking and robbery. On the evening of November 4, 2004, Soeum Beng, who was also acquainted with defendant, drove with his girlfriend to a liquor store in Long Beach. While Beng remained in the car with the engine running, his girlfriend went into the store. Defendant and Eddines were also inside. Defendant soon got into the passenger seat of Beng’s car and told Beng to follow Eddines’s van. Defendant, who was angry with Beng over a “Playstation 2,” told Beng that he wanted money. Defendant’s hand was beneath his shirt, which made Beng think that defendant had a gun, especially because defendant was “known as a shooter” and had previously shot at Beng’s car. Beng said he had no money, and defendant said that he would take Beng’s car. Beng’s girlfriend tried to get into the car, but defendant locked the doors to prevent her from doing so.

Beng started to drive but refused to follow Eddines’s van. Instead Beng tried to stall defendant by going to a friend’s house. Eddines drove behind Beng. When Beng arrived at his friend’s house, defendant removed Beng’s keys from the ignition. Defendant said he would take the car, and Beng ran to the door of the house. The friend was not home and a neighbor called the police. Although the car was not taken, officers who responded to the scene could not find defendant or Beng’s car keys. (Defendant’s robbery conviction was based on defendant’s theft of the keys.)

Murder. Eddines testified that in the early morning hours of March 29, 2005, he was driving defendant, whom Eddines knew to be a Suicidals member, home from a party. Defendant said he wanted to buy some more beer. As they neared a taco stand on Pacific Coast Highway, Eddines stopped near two men who were in the street. Defendant yelled at them. Eddines did not want any problems and started to drive away, making a U-turn in order to go to a nearby liquor store. As he stopped at a red light, Eddines saw a man later identified as Arthur Perez standing on the corner. Defendant asked Perez where he was from (that is, for his gang affiliation). Before Perez could respond, Eddines heard two gunshots and saw a gun in defendant’s hand. Eddines drove away and dropped off defendant at home.

Perez was hit twice and died from his wounds. A bullet fragment was found in Perez’s clothing. As a result of Eddines’s participation in the incident, he pleaded guilty to voluntary manslaughter (reduced from murder) and admitted firearm and gang allegations. He was to receive a sentence of 16 years in prison in exchange for his truthful testimony against defendant.

Robert Briones, who was one of the two people at the taco stand, testified that a van fitting the description of the one driven by Eddines pulled up with five or six Asians inside. The front passenger, an adult male Asian, displayed a gun and asked Briones for his gang affiliation. Briones said he did not belong to a gang. The van started to drive away, then made a U-turn and came back toward Briones. Briones and his companion fled. Briones soon heard gunshots and later observed Perez lying on the ground. Briones’s companion, Lloydita Ford, testified that when she heard gunshots she saw the arm of the passenger sticking out the window and “lights from the gun.”

Additional prosecution evidence. On April 2, 2005, Eddines was stopped by Long Beach police officers while driving his van. There were five passengers inside, including defendant and Eric Nget, who were the only ones in the last row of seats. Nget testified that when the police stopped the van, defendant handed something to him that was heavy and said, “‘Put it on the side.’” Officers searched the van and found a gun by the last row of seats. A ballistics expert was of the opinion that that gun had fired the bullet, a fragment of which was found in Perez’s clothing.

All the occupants of the van were detained. Defendant was arrested and booked. While being booked, defendant told Long Beach Police Detective Joe Pirooz that he was a member of the Suicidals and his moniker was “Lil’ Trigger.” In addition, Pirooz was present at a 2004 parole search of defendant’s residence. During that search, defendant told Pirooz that he was a member of the Suicidals and his moniker was “Lil’ Trigger.” Pirooz further testified he had been told of defendant’s membership in the Suicidals by “Asian gang detectives” and by other Suicidals gang members, three of whom Pirooz identified by name and moniker.

With respect to other elements of the alleged gang enhancement, court documents were admitted into evidence that reflected the convictions of two persons, one for robbery and the other for possession of a controlled substance for the purpose of sale. Pirooz testified that these two persons were members of the Suicidals gang. Pirooz further testified that Hispanic gangs were enemies of the Suicidals. Asking someone where he is from constitutes a gang challenge. In Pirooz’s opinion, the murder of Perez was for the benefit of the Suicidals because it would instill fear in Hispanic gang members in the area and promote the status of the Suicidals.

On the morning of the day that Eddines was scheduled to testify, defendant assaulted Eddines while the two were in a holding tank waiting to go to court. At the time of the assault, Eddines was handcuffed to a chain around his waist. Defendant, who was supposed to be kept away from Eddines, was unrestrained.

Defense. In defense, evidence was presented regarding Briones’s inability to identify defendant and inconsistencies in Nget’s statements to authorities.

DISCUSSION

1. Sufficiency of Accomplice Corroboration to Support Murder Conviction

Defendant contends that his murder conviction must be reversed because there was insufficient evidence to corroborate the testimony of his accomplice, Micah Eddines. We disagree.

“The law requiring corroboration of accomplice testimony is well established. ‘A conviction cannot be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof. . . .’ [Citation.] ‘”The requisite corroboration may be established entirely by circumstantial evidence. [Citations.] Such evidence ‘may be slight and entitled to little consideration when standing alone. [Citations.]’”’ [Citations.] ‘”Corroborating evidence ‘must tend to implicate the defendant and therefore must relate to some act or fact which is an element of the crime but it is not necessary that the corroborative evidence be sufficient in itself to establish every element of the offense charged.’ [Citation.]”’ [Citations.] In this regard, ‘the prosecution must produce independent evidence which, without aid or assistance from the testimony of the accomplice, tends to connect the defendant with the crime charged. [Citation.]’ [Citation.] ‘”Corroborating evidence is sufficient if it substantiates enough of the accomplice’s testimony to establish his credibility [citation omitted].”’ [Citation.]” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1128.)

Here, evidence independent of Eddines’s testimony established that defendant was a member of an Asian gang and that Hispanic gang members are enemies of defendant’s gang. Defendant was frequently a passenger in Eddines’s van. Shortly before Perez was shot, an Asian passenger in a van that fit the description of the van belonging to Eddines displayed a gun and issued a gang challenge to Briones, a Hispanic. Shots were then fired from the passenger window of the van. When the van was being stopped by the police a few days later, defendant handed something to one of his fellow passengers, and the murder weapon was found in the area of the van where defendant had been sitting. Finally, defendant attacked Eddines the morning of the day that Eddines testified against him, evincing a consciousness of guilt. The foregoing evidence was more than adequate to corroborate Eddines’s testimony that defendant shot Arthur Perez on March 29, 2005.

2. Sufficiency of Evidence of Carjacking

Relying on People v. Duran (2001) 88 Cal.App.4th 1371, 1377, defendant contends that the evidence of carjacking was insufficient because Beng’s refusal to follow defendant’s instructions on where to drive negated the element of asportation. Again, we disagree.

In Duran, the court noted that carjacking, like robbery, requires both a taking and a carrying away. “‘”A taking occurs when the offender secures dominion over the property, while a carrying away requires some slight movement of the property.”’ [Citations.] . . . [A] ‘reasonable fact finder could find that a taking occurred when defendant exercised dominion and control over the car by ordering [the victim] to stop the car and to get out; [the victim’s] response in braking the car and running away from it provides the asportation element of the completed crime.’ [Citation.]

“[The Duran court held] that the Legislature intended that the well-established robbery definition of dominion and control be applied to the new crime of carjacking. When [the defendant] entered the car he threatened to kill the entire family if [the victim] did not take him where he wanted to go. As [the victim] drove the car, [the defendant] told him at gunpoint when to speed up and slow down, when to get on the freeway and when to get off, as well as where and when to turn. A taking occurred when [the defendant] imposed his dominion and control over the car by ordering [the victim] to drive; [the victim’s] response in driving the car where [the defendant] directed him provided the asportation element of the completed crime.” (People v. Duran, supra, 88 Cal.App.4th at p. 1377.)

Although the facts of Duran are different from the situation here, the result is the same. To be sure, asportation occurs when a victim drives as directed by the carjacker. But if a driver’s braking and running away from a car may also constitute asportation, by parity of reasoning this element may be satisfied by other movements of the victim that are compelled by the carjacker. Beng had no plan or desire to drive defendant anywhere that evening. Thus, although Beng did not follow instructions as to route, Beng’s conduct in driving to his friend’s house was based solely on the coercion exerted by defendant. We conclude that this is sufficient to satisfy the asportation element of carjacking.

3. Prosecutorial Misconduct

Defendant contends the prosecutor committed prejudicial misconduct during closing argument by seeking to reduce the prosecution’s burden of proof, expressing personal belief in defendant’s guilt, vouching for a prosecution witness, and appealing to passion and prejudice, and that trial counsel was ineffective for failing to object to any of these arguments. We disagree. The prosecutor did not commit misconduct, and therefore trial counsel had no reason to object. Nor, assuming objections would have been proper, were the comments of such a nature as to render the trial fundamentally unfair, thereby requiring that defendant’s conviction be reversed. (People v. Hill (1998) 17 Cal. 4th 800, 819.)

a. Reducing the prosecution’s burden of proof

In defendant’s closing argument, he asserted, among other things, that Eddines was the shooter and had lied in order to get a better deal for himself, that Pirooz was not to be believed regarding defendant’s membership in the Suicidals because Pirooz’s contact with defendant had not been documented, that Nget lied about defendant handing something to him in the van, that the gun belonged to Eddines, who lived in the van and needed the gun for protection, and that defendant attacked Eddines in jail solely because he was mad at Eddines for lying.

In rebuttal, the prosecutor addressed these arguments. The prosecutor stated: “[Defense counsel] got up here and basically told you that, that there was no documentation [that defendant was a Suicidals gang member]. And this [exhibit] proves that there was. Is he taking you to the one thing . . . that you are responsible for in this case, the truth? Is he taking you there? The answer is, no, he is not. And when defense counsel doesn’t take you there, that means his client is guilty.” The prosecutor next addressed the lack of fingerprint evidence, asked if it made any difference, answered his own question in the negative, and again asked, “Is [defense counsel] taking you to the truth in this situation? And the answer is, he is not.” Next, the prosecutor referred to evidence that Nget and Eddines did not know each other and therefore Nget would not lie in order to protect Eddines. The prosecutor then asked, “Did [defense counsel] get up here and address that [evidence] to you? . . . No, he did not. The reason was because he has no explanation for it, and if you don’t have an explanation for it, your client is guilty.”

Defendant provides no pertinent authority to support his contention of an impermissible burden shifting by the prosecutor. To the contrary, we conclude “[t]here is no reasonable likelihood that the jury would have understood the remark[s] to cause the mischief complained of. . . . It was ‘a fair comment on the state of the evidence . . . .’ [Citation.]” (People v. Osband (1996) 13 Cal.4th 622, 696; see also People v. Frye (1998) 18 Cal.4th 894, 973 [“the prosecutor’s remark was a comment on a weakness in defendant’s theory of the case, in no way suggesting defendant had the burden of proving his innocence”].)

b. Expressing personal belief and vouching

During the opening portion of his argument, the prosecutor, referring to Nget, said: “You may think, ‘Hey, look, I didn’t like that guy.’ I understand that. And he seems to be a little bit uncooperative. But we as people don’t know for sure if we would be any different. I don’t know for sure if I would be any different. If I knew somebody was named Lil’ Trigger and that he had shot up a car before in the past and that he carjacked me -- and I’m referring to Mr. Beng -- and that he carjacked me, and that he brutally killed somebody on a street corner for absolutely no reason, I don’t know if I myself would cooperate with the police if I had to live there.”

At trial, evidence was introduced that Eddines gave a statement to detectives the day his van was stopped by the police. In that statement, Eddines said that defendant had shot Perez. Eddines was later charged with murder and entered a deal to testify. His story about the incident did not change.

In discussing Eddines’s credibility during rebuttal argument, the prosecutor said that Eddines was an articulate witness and continued: “But defense counsel would have you believe that he’s a total liar because he was given a deal even though he gave a statement earlier. And here’s the thing. He gave a statement before he was ever given a deal. So we knew what he had to say.” The prosecutor then continued by noting that the deal required that Eddines testify truthfully as determined by the court, not the prosecutor himself.

“A prosecutor is prohibited from vouching for the credibility of witnesses or otherwise bolstering the veracity of their testimony by referring to evidence outside the record. [Citations.] Nor is a prosecutor permitted to place the prestige of her office behind a witness by offering the impression that she has taken steps to assure a witness’s truthfulness at trial. [Citation.] However, so long as a prosecutor’s assurances regarding the apparent honesty or reliability of prosecution witnesses are based on the ‘facts of [the] record and the inferences reasonably drawn therefrom, rather than any purported personal knowledge or belief,’ her comments cannot be characterized as improper vouching. [Citations.]” (People v. Frye, supra, 18 Cal.4th at p. 971; accord, People v. Stewart (2004) 33 Cal.4th 425, 499.)

We perceive of nothing in the portions of the argument about which defendant complains that constitutes an improper expression of personal belief or vouching. Rather, the comments were, again, fair comment on the evidence. Accordingly, defendant’s argument must be rejected.

c. Appeal to Passion and Prejudice

The prosecutor concluded his rebuttal argument as follows: “The truth of the matter is that [defendant] is a vicious killer who went up to Mr. Perez and killed him for no good reason, a guy walking down the street, and there is only one just verdict in this case for you. And I know [defense counsel] gets up there and says each one of you individually, but you must work as a team. If you have a different opinion, fine, but you have a duty to talk about it with the other people and come to a decision and work as a team. There is only one just verdict based on the evidence in this case, and that is [defendant] is guilty of murdering Arthur Perez.”

This argument, which was based solely on the evidence presented to the jury, did not exceed permissible bounds and did not constitute misconduct. (See People v. Harrison (2005) 35 Cal.4th 208, 244--245.)

4. Instruction on Credibility

Defendant contends that his trial attorney was ineffective for failing to request that the instruction on witness credibility, CALJIC No. 2.20, include the bracketed factor of “[w]hether the witness is testifying under a grant of immunity.” But Eddines was not testifying under a grant of immunity. And in any event, given that the jury was fully informed of the plea bargain and the CALJIC No. 2.20 instruction tells the jury to consider the existence of “bias, interest, or other motive” of a witness, defendant could not have been prejudiced by the failure to refer separately to Eddines’s plea bargain in this instruction. Accordingly, the contention must be rejected.

5. Gang Finding

Defendant contends that the gang finding must be reversed because his membership in a gang was based on an admission that was elicited in violation of his Miranda rights and evidence of predicate offenses that was introduced at trial in violation of the hearsay rule. We disagree.

a. Miranda

While being booked following his apprehension in Eddines’s van, defendant told Detective Pirooz that he was a member of the Suicidals gang and his moniker was Lil’ Trigger. Defendant sought to exclude evidence of this statement, arguing that it did not qualify under the “booking exception” to Miranda. Testifying under Evidence Code section 402, Pirooz stated that the booking form he used called for information on gang affiliation, and this information assisted in keeping members of rival gangs separate from one another. The trial court concluded there was no Miranda violation but commented that the booking officers knew this was a gang case. The prosecutor responded, “If you have a question about it, Judge, I won’t ask it. There is a prior contact, and I won’t.” The court then noted that “[i]t is an area full of land mines.”

Later, on questioning by defense counsel during cross-examination, Pirooz testified he had information that defendant was a Suicidals member as of 2001, but that the first time Pirooz had personally questioned defendant on the subject was in 2004. Defense counsel asked about documentation of Pirooz’s information. Thereafter, extensive discussions took place with regard to whether defendant’s questioning was an attack on Pirooz’s credibility, which would open the door to admitting evidence of the booking statement. During these discussions, the prosecutor noted that the trial court had denied defendant’s Miranda motion and that he had voluntarily refrained from going into the subject. The court stated that “the land mine is still there, but [defense counsel], I believe, did open the door basically attacking [Pirooz’s] credibility, essentially, saying he is not being accurate, truthful, honest. That’s my interpretation.” Ultimately, Pirooz testified to defendant’s admission of gang membership while being booked following apprehension in Eddines’s van.

We need not address whether the trial court was correct in ruling that the “booking exception” to Miranda applied in this case or whether it was proper to rule that defense counsel had opened the door to admission of defendant’s booking statement. This is because, in addition to the booking statement, the record establishes that defendant had previously told Pirooz that he was a member of the Suicidals and his moniker was “Lil’ Trigger,” that Pirooz had also been told of defendant’s Suicidals membership by both police personnel and other members of the gang, and Eddines had testified at trial that defendant was a Suicidals member. Thus, the information gleaned from defendant during booking in this case was duplicative of information received from multiple other sources, and, if erroneously admitted, was not prejudicial to defendant. (People v. Chapman v. California (1967) 386 U.S. 18 [87 S.Ct. 824]; People v. Watson (1956) 46 Cal.2d 818, 836.)

b. Hearsay

A finding that a crime was committed for the benefit of a criminal street gang requires a showing of other enumerated types of crimes committed by gang members. (Pen. Code, § 186.22, subd. (e).) This showing was made here based on evidence, noted above, of the prior convictions of two Suicidals gang members. Defendant contends that the evidence of their gang membership constituted inadmissible hearsay evidence under Crawford v. Washington (2004) 541 U.S. 36 [124 S.Ct. 1354]. Apart from defendant’s failure to interpose an objection on this ground, Crawford is inapplicable to this evidence. (See People v. Thomas (2005) 130 Cal.App.4th 1202, 1208.) Accordingly, defendant’s contention must be rejected.

6. Sentencing Issues

At sentencing, the trial court stated that it was imposing, among other fines, a “$200 probation fine.” Given that defendant was not granted probation, defendant contends and the Attorney General aptly concedes that such fine (Pen. Code, § 1203.1, subd. (a)) was improper. Accordingly, the fine, which is not reflected in the minute order or the abstract of judgment, must be stricken.

The Attorney General further notes that the abstract of judgment does not reflect the gang finding, which requires that defendant serve a minimum prison term of 15 years on his murder conviction (count 1) before being considered for parole. (Pen. Code, § 186.22, subd. (b)(5); People v. Lopez (2005) 34 Cal.4th 1002, 1004.) We shall order that the abstract of judgment be amended to reflect the gang finding.

DISPOSITION

The probation fine orally imposed by the trial court is stricken, and the trial court is ordered to amend the abstract of judgment to reflect the finding under Penal Code section 186.22 on count 1 and to forward a copy of the amended abstract to the Department of Corrections. The judgment is affirmed.

NOT TO BE PUBLISHED.

MALLANO, Acting P. J.

I concur:

JACKSON, J.^*

I concur in the judgment only.

VOGEL, J.

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^[1] Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602] (Miranda).

^* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.