P. v. Chung and Ryoo

Filed 8/5/09 P. v. Chung and Ryoo CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEALS from judgments of the Superior Court of Los Angeles County, Daniel J. Buckley, Judge. Affirmed.

Marilyn G. Burkhardt, under appointment by the Court of Appeal, for Defendant and Appellant Justin Chung.

Marcia C. Levine, under appointment by the Court of Appeal, for Defendant and Appellant Pyung Hwa Ryoo.

Edmund G. Brown, Jr., Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle, Stacy S. Schwartz and Dana M. Ali, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION

A jury convicted defendants Justin Chung and Pyung Hwa Ryoo of murder ( 187, subd. (a)),[1] attempted willful, deliberate and premeditated murder ( 664/187, subd. (a)) and shooting at an occupied motor vehicle ( 246) and found that each defendant discharged a firearm, proximately causing great bodily injury and death ( 12022.53) and that each had committed the crimes to benefit a street gang ( 186.22, subd. (b)(1)(A)).[2]

In these appeals, defendants raise three contentions. The first is that the trial court erred in denying their pretrial motion to exclude as coerced the incriminating statements of a third party. The second is that the trial court erred in denying their request that the jury be instructed that it should determine whether one of the prosecutions witnesses was an accomplice. The third is that there is insufficient evidence to support the street gang enhancement. We are not persuaded by any of defendants contentions and therefore affirm the judgments in their entirety.

STATEMENT OF FACTS

1. Overview

The crimes are gang inspired. Defendants are members of the Hangook Boys (HKB) gang. HKB members confronted the victims at a party, a party also attended by defendants. The victims left but defendants followed in their car and, ten minutes later, shot at them on the freeway. At trial, the People linked defendants to the crimes through the extrajudicial statements of two HKB members. The first is Linora Lay (Lay). Lay was at the party, left with defendants, and was a passenger in their car when the shootings occurred. The second is Brian Moon (Moon). Moon confronted the victims at the party, observed defendants at the party and spoke with defendant Chung after the shooting.

2. The Prosecutions Case

In the evening of August 17, 2006, Calvin Yao (the attempted murder victim), Eric Huang (the murder victim), and three other men attended a party in Rowland Heights. At the party, Moon and Adam Pak, both members of HKB, came up to the group and said Where are you from? Moon erroneously believed that the men were members of the rival Wah Ching gang. Moon was very aggressive and apparently heavily intoxicated. One of the men responded that they were not from a gang and were at the party only to be with friends. Moon stated that he and Pak were members of HKB and continued to ask the men why they were at the party. At that point, Yao and his friends left the party.

As Yao drove his black Honda Accord onto the freeway, he saw a white Toyota Camry behind him, a vehicle subsequently identified as belonging to defendant Ryoos mother. The Camry came up on the left side of Yaos car. Shots rang out. Yao was wounded in his neck, chin and back. Huang, seated in the front passenger seat, was fatally hit in the head.

Three months later (November 2006), Moon was arrested for an unrelated crime (attempted robbery). Moon eventually told the police about the events of August 17.[3] He admitted being a HKB member and that he had confronted the victims at the party. He said that other HKB members were at the party, including both of the defendants as well as Lay and Pak. Moon saw one of those HKB members with a silver Smith & Wesson .357 Magnum. As the victims left the party, Moon saw defendant Chung and Lay follow them, enter defendant Ryoos white Toyota Camry, and leave. Moon did not join them in the car. Sometime later, defendant Chung telephoned Moon and said: [T]hey got him. . . . [T]hey shot him on the freeway [with a] Magnum .357. Defendant Chung told Moon that Lay had been in the car with him. Defendant Chung repeatedly asked Moon what he should do. Moon replied: I dont know. Talk to [Pak]. Defendant Chung then spoke with Pak who told him to go to Fontana.

In December 2006, the police interviewed Lay who was in custody on an unrelated offense (carjacking). Lay eventually admitted that he had been in the back seat of the white Toyota Camry during the August 17 shooting. Lay stated that defendant Ryoo had driven the car and that defendant Chung, seated in the front seat, had been the shooter.

The evidence presented in regard to the street gang enhancement will be set forth when we discuss defendants contention of insufficient evidence to sustain the jurys findings in that regard.

3. The Defense Case

Defendant Ryoo testified. He conceded that he had gone to the party with defendant Chung and Lay and that he was aware of Moons confrontation with others at the party. However, he claimed that he stayed at the party the entire evening, leaving with Daniel Kim (Kim). Defendant Ryoo denied any involvement in the shooting. Kim testified and supported defendant Ryoos version of the evenings events, including the assertion that neither defendant left the party without him.

Both defendants presented character evidence that they were non-violent.

Defendant Chung did not testify.

A. ADMISSION OF LAYS STATEMENTS TO THE POLICE

The defense may move to exclude from admission at trial incriminating statements made by a third party if the police obtained the statements through coercion. The theory is that because coerced statements are inherently unreliable, their admission at trial results in a fundamentally unfair trial in violation of the federal constitution. (People v. Douglas (1990) 50 Cal.3d 468, 499; see also People v. Badgett (1995) 10 Cal.4th 330, 347 [[T]he primary purpose of excluding coerced [statements] is to assure the reliability of the trial proceedings].)

Relying upon that precedent, both defendants moved prior to trial to preclude the prosecution from introducing into evidence Lays interview with law enforcement, conducted several months after the shooting, in which Lay implicated defendants in the crimes. Defendants relied upon the transcript of Lays interview and testimony from the preliminary hearing. They urged that Lay was a 16-year-old child who was threatened with a murder charge if he did not agree to say he was a witness to a drive by freeway shooting and that the interrogating officer made clear that the implication was that unless Mr. Lay named who was the driver and who was the shooter, he himself would be charged with the murder. The trial court denied the motion, finding under the totality of the circumstances that that Lays statements were not coerced. We find no error.

1. Factual Background

a. The Interview

Los Angeles County Deputy Sheriffs Kevin Lowe and Dameron Payton interviewed Lay on December 8, 2006. A week earlier, they had interviewed Moon. As set forth in our statement of facts, Moon, among other things, had identified Lay as a member of HKB and placed him at the party (possibly with a gun). Moon saw Lay and defendant Chung follow the victims out and enter defendant Ryoos car. When defendant Chung later telephoned Moon, he told him that Lay had been in the car during the shooting.

With the information gained from Moon, the deputies interviewed 16-year-old Lay. Lay was in custody on a carjacking charge. The deputies told Lay that they wanted to speak with him about the August 17 party and subsequent shooting. At first, Lay denied being a member of HKB or knowing any of its members, including defendants. Deputy Lowe summarized the events at the party (including the confrontation with the victims) but Lay replied he did not remember attending the party. Deputy Lowe explained, without identifying anyone, that the victims had left the party, were chased by some guys in the car and shot on the freeway. Lay responded that the events did not sound familiar to him. Deputy Lowe then proceeded to explain that after the victims left the party in their car, (and we italicize the portions of the interview defendants rely upon to support their claim of coercion):

So this guy [defendant Chung],^[[4]] he gets in the car with somebody else. [Defendant Chung] ended up shooting at these guys. Okay? And there was somebody else in that car. The other person in that car would be you. Were not saying that you shot. Were not saying that you were driving the car. But we can put you in the car. The problem is that you say you dont know any of these guys, but how come they know you? And your cell phone? How come we have your cell phone records, and you called and talked to these guys? . . . The problem is here, . . . is that were not talking about some little case that youre gonna go off and youre gonna end up doing a couple of years for. Were talking about the big leagues. Something really big. Somebody died. You understand? The person that died was a college student. . . . As far as were concerned, you could be a witness, or you could be a suspect. Its up to you today to decide what it is that you want to be. If you pulled the trigger, then obviously you cant be a witness. See what Im saying? If youre sitting in the car, and you didnt have anything to do with the shooting, I would choose to be a witness. I sure wouldnt want to be a suspect in a murder. Another guy was hit in that car. Shot his face off, which is an attempted murder. So the shooter in this case has got attempted murder and a murder case on him. Me, personally, if I were you, all of 16 years of age, I dont think Id want to be in prison the rest of my life. But if you pulled that trigger, then you can continue to say what youre telling us right now. And well just go file a case. You wont be sitting here in the comfort of the California Youth Authority. Youll be sitting up in State Prison. Cause thats where these cases go. (Italics added.)

Deputy Lowe asked if Lay understood what were trying to tell you. Lay said that he did. Deputy Lowe told him that they already knew the answers to their questions and they just wanted to hear his responses. The interrogation continued as follows:

LOWE: So to sit there and lie to us is not gonna work for you. Its just getting you in deeper. Only, only reason why somebody would lie is if theyre guilty of something. You got in a dilly pickle right now. You understand?

LAY: Yep.

LOWE: We can put you at the party, and we can put you in the car. You have to make a decision. Like I said, were you the shooter? Were you the driver? Were you a passenger? We know the answers to these questions. But we need to hear the answers from you so we can decide what we need to do from here. Okay? The most important question? Shooter? Driver? Or passenger? Which one are you?

LAY: Passenger.

LOWE: Tells us what we need to do next then, okay?

LAY: Well, what is that?

LOWE: Huh?

LAY: What is that?

LOWE: Well, if youre a passenger, then in my opinion, in my partners opinion, youre a witness. Okay? If youre the shooter and the driver, youre a suspect. You understand? So that tells us what we need to do next. If youre the passenger. And youre honestly andrighteously the passenger, then wed like you to explain to us what happened, what happened, who you, what you saw, what you did. Okay? You understand? Are you with me so far? Are you with me?

LAY: Yeah. (Italics added.)

Lay then admitted that he associated with HKB and had attended the party with HKB members. He was drinking during the party when they just called [him] out to the car, and they just took off. After Lay said he just fell asleep in the car and did not know what happened next, the following occurred in the interrogation:

LOWE: You fell asleep in the car? Then what happened?

LAY: I dont know.

LOWE: Thats not gonna work. Thats not gonna work. People were in the car. So you need to be, you need to be straight. You need to be straight. If you want us to treat this the way youre telling us, right? Youre telling us youre the passenger. You werent the shooter and you werent the driver. You got to be straight with us. We already know the answers, but we need to hear it from you. Dont sit there and bullshit us. If you wanna bullshit us, well get up and well go file the case against you and your buddies, and youre gonna get wrapped up with them. Thats how its gonna be. I mean, Im not gonna bullshit you here. If you, if youre gonna start going that direction, then its gonna lead us to believe that youre not telling us the truth. From the information that we have right now. Which means that youre a suspect. Okay? You need to be straight.

LAY: So what happens to witnesses?

LOWE: What happens to witnesses? Were gonna get your statement. And were gonna leave here. Youre not gonna be charged if youre a witness. If youre a suspect, were gonna go a different route. If youre a suspect, then were gonna have to file charges against you. And we would have to go a different route in this whole thing. The whole thing changes if youre a suspect. My partner and I dont believe youre a suspect. But we could be wrong. Thats why were here talking to you. I dont want something to get pinned on somebody that they didnt do. You understand that? Im being straight. Were being very straight here. This is serious business. We have somebody whos dead and somebody that got shot in his face. This is very serious. We dont want the wrong person going to jail. We dont want the wrong person being the person with the gun. Thats why I asked you. Were you driving? Were you shooting? Or were you a passenger? Im gonna ask you that again, cause I dont believe you started telling us the truth yet. Driver, shooter, or passenger? Which one were you?

LAY: Passenger.

LOWE: You were the passenger? You did not shoot at anybody? You were not driving the car?

LAY: No.

LOWE: Okay. What happened? When you got in the car and you guys left, what happened? (Italics added.)

Lay described following a black car onto the freeway while in a four-door white Camry Toyota. When asked who was driving the Toyota, Lay pointed to a photo of defendant Ryoo.[5] When asked who was in the front passenger seat, Lay said he did not know his name. Deputy Lowe replied: Hes a good friend of yours, Justin. Lay replied [y]eah and then gave Justins street name (Silent), his last name (Chung), and his neighborhood. Lay said that defendant Chung shot at the other car two or three times. Lay did not know that defendant Chung had the weapon before he got in the car. After the shooting, defendant Chung called someone on his cell phone, [m]aybe Pak. Defendants drove Lay back to his neighborhood.

The detectives then began questioning Lay from the beginning again, starting with his actions immediately before he went to the party. Lay reiterated that both defendants were at the party. At some point, he and defendants (his homeys) went to the Toyota Camry. Defendant Ryoo told Lay that he gotta meet with some guys. Were gonna go take care of it but said nothing about a shooting. Lay thought they were going to follow the victims, force them out of their car, and theyd box it out. Lay was willing to back defendants up in a fight but knew nothing about a possible shooting.

As they pulled up alongside Yaos car on the freeway, defendant Chung rolled down the window, retrieved a gun from under the seat or something, and shot. Defendant Chung called his home boys and said that they got them. Later, Lay learned that one of the victims had died. At that point, the interview concluded.

b. Preliminary Hearing Testimony

At the preliminary hearing, Deputy Payton testified to Lays hearsay statements incriminating defendants. In addition, the prosecutor called Lay as a witness. Lays testimony, covering approximately 45 pages, was consistently evasive. There were long pauses (noted for the record) between the prosecutors questions and Lays answers. When he did respond, Lay testified that he did not remember even the most trivial matters. At several points, he was asked about the interview with Deputy Lowe. He testified that he had no memory of the interview. When pressed, he remembered that the deputy told him he could be either a witness or suspect. When asked if the deputy suggested what he should say, he replied he did not remember. When asked by defense counsel Ever feel like, if you didnt make a statement, that you were going to be charged with something very serious?, Lay replied Yeah.

c. The Trial Courts Ruling Denying the Motion to Exclude Lays Statements

The trial court indicated that it was inclined to deny the motion. I do find that the statements and comments made by the interrogator . . . never reached a point that made Mr. Lays statements involuntary. After hearing further argument from counsel, the court explained: Well, it is a close call. Its a matter where you look at the totality. But I do stand by my initial comments that I do believe there is not coercion here to the point that the statement was involuntary. [] I also find that it is not coercion such that it would actually affect the reliability of the evidence to be presented at trial.

d. Lays Trial Testimony

The prosecutor called Lay as a witness. After Lay testified that he recalled neither the events of August 17 nor his statements to Deputy Lowe, the prosecutor introduced into evidence a tape recording of Lays interview with the deputies. (Evid. Code,  1235.)[6] In subsequent testimony, Lay explained that he felt it was in his best interest to be a witness, not a suspect and that during the interview, Deputy Lowe put words in [his] mouth.

2. Discussion Deputy Lowes Questioning Was Not Coercive

Defendants contend that Lays statements were involuntary under the totality of the circumstances because the officers promised leniency in exchange for, and threatened prosecution in the absence of, specific statements that they suggested. We disagree.

In the trial court, it is the defendants burden to prove by a preponderance of the evidence that the third party statements were involuntarily obtained. (People v. Douglas, supra, 50 Cal. 3d at p. 500.) On appeal we independently review the entire record to determine whether a witnesss statements were coerced so that their admission rendered the defendants trial unfair. (People v. Boyer (2006) 38 Cal.4th 412, 444.) In doing so, however, we defer to the trial courts credibility determinations and to its findings of facts insofar as they are supported by substantial evidence. (Ibid.)

A witnesss statements are coerced if they are the product of police conduct which overcomes the individuals free will. (People v. Lee (2002) 95 Cal.App.4th 772, 782.) Thus, a statement is considered involuntary if not the product of a rational intellect and free will. (Mincey v. Arizona (1978) 437 U.S. 385, 398.) The voluntariness of statements is tested by the totality of the circumstances, including the details of the interrogation and the characteristics of the witness. (People v. Hill (1992) 3 Cal.4th 959, 981.)[7]

When the police interview an individual, they are not precluded from discussing any advantage or other consequence that will naturally accrue in the event the [witness] speaks truthfully about the crime. [Citation.] The courts have prohibited only those psychological ploys which, under all the circumstances, are so coercive that they tend to produce a statement that is both involuntary and unreliable. (People v. Ray (1996) 13 Cal.4th 313, 340.) Consequently, exhorting an individual to tell the truth is not coercive. (People v. Hill (1967) 66 Cal.2d 536, 549.) Further, even if the police promise a benefit, if it is one which flows naturally from a truthful and honest course of conduct, the conduct is not improper, ergo, not coercive. (Ibid.) Thus, for example, an offer of leniency in return for cooperation does not render a third party statement involuntary. (People v. Badgett, supra, 10 Cal.4th at p. 354.)

Given the above precedents, we conclude that defendants failed to meet their burden of establishing that Lays statements were coerced. Deputy Lowe did not threaten Lay but, instead, correctly informed Lay that he could be placed in the car from which the shots were fired. Deputy Lowe simply wanted to learn what Lays role was: participant or passive observer. The deputy pointed out that a participant would be subject to prosecution for murder and attempted murder whereas a witness would not be prosecuted. Since, not unexpectedly, Lay was evasive and non-committal, the deputy had to reiterate his points several times. After Lay ultimately stated he had been a passenger, Deputy Lowe asked Lay to identify the roles of the other people in the car. At that point, Lay claimed he had fallen asleep. The deputy vigorously expressed his disbelief of that assertion, reiterated that Lay was a suspect against whom charges could be filed while acknowledging that we could be wrong about that belief, and again asked him to state his role in the events, properly explaining that a witness would not be charged. Lay reiterated he was only a passenger and at that point explained defendants respective roles in the shooting. Thereafter, the deputy questioned Lay again in detail, proceeding in chronological manner and eliciting further details about the events, including each defendants role.

Viewing the interview in its entirety and understanding Deputy Lowes remarks in context, we conclude that the deputy did nothing more than exhort Lay to tell the truth, an approach which has long been held proper. (People v. Hill, supra, 66 Cal.2d at p. 549.) In so doing, he correctly pointed out that a witness would not be subject to criminal prosecution but a suspect would face extremely serious charges for these events. This was proper. (People v. Holloway (2004) 33 Cal.4th 96, 115 [telling the defendant that he could be subject to the death penalty was not impermissible because based upon the facts he was a clear candidate for capital prosecution]; People v. Ray, supra, 13 Cal.4th at p. 340 [an investigating officer can discuss the advantages or natural consequences of speaking truthful]; McCalvin v. Yukins (6th Cir. 2006) 444 F.3d 713, 721 [police may properly convey seriousness of crimes for which an individual is being investigated]; and United States v. Pelton (4th Cir. 1987) 835 F.2d 1067, 1072-1073 [although discussing the course an investigation can legally take may cause the interviewee discomfort, it is not coercive].) That at some points Deputy Lowe expressed disbelief at Lays claim of ignorance about the operative events or having been sleep during the shooting does not change that conclusion. (United States v. Mahan (6th Cir. 1999) 190 F.3d 416, 422-423 [not improper for an investigator to state that a statement is unbelievable].) Unless Lay could explain his role, he was (based upon Moons statements) a suspect. Thus, there was no improper or unfounded threat of arrest. Truthful statements about [a witnesss] predicament are not the type of coercion that threatens to render a statement involuntary. As the [United States] Supreme Court has observed, no statements would qualify as voluntary under such a standard, for very few people give incriminating statements in the absence of official action of some kind. [Citation.] (United States v. Pelton, supra, 835 F.2d at p. 1073.) Nor was there any false promise of benefits. Deputy Lowe accurately predicted that if the evidence established that Lay was only a witness and not a participant, he would not be charged. In conclusion, Deputy Lowe did not cross the line from proper exhortations to tell the truth into impermissible threats of punishment or promises of leniency. (People v. Holloway, supra, 33 Cal.4th at p. 115; see also People v. Boyer, supra, 38 Cal.4th at p. 445 [not improperly coercive to confront a lesser participant in a crime with his predicament and offer immunity from prosecution for the witness criminal role in return for the witnesss promise to testify fully and fairly]; People v. Badgett, supra, 10 Cal.4th at p. 355 [not improper to confront a suspect with his predicament or an offer to refrain from prosecuting if he will cooperate with the police investigation].)

Defendants claim that Deputy Lowe suggested specific statements that he wanted Lay to make is not supported by the record. Instead, Deputy Lowe used the information he already had to break through Lays evasiveness and to exhort to him to tell the truth. In particular, the deputy repeatedly stated that he had information placing Lay in the car with defendants. After Lay finally acknowledged that he had been in the car, Lay gave information that had not been furnished by Deputy Lowe and that only someone who had been present would know. For instance, Lay volunteered that he and defendants were in a four-door white car and that the victims were in black car. Lay also described the movements of the victims car both before and after the shooting. When the deputy asked who drove the Camry, Lay pointed to a photo of defendant Ryoo. When Lay claimed he did not know the driver, Deputy Lowe replied it was Justin. Lay agreed with that identification and volunteered further identifying information about defendant Chung. Given that Deputy Lowe had the challenge of extracting the truth from a young, streetwise gang member who was often coy and evasive in answering his questions, we find that the deputys questioning of Lay did not go over the line to a demand that Lay give a particular recitation of the events. We therefore reject defendants argument that Deputy Lowe demanded that Lay provide[] a story that fit within [his] predetermined version of the events.

Defendants argument that Deputy Lowe choreographed the interview to coerce Lay to identify defendants respective roles and to identify himself only as a witness relies heavily upon the facts that (1) Deputy Lowe twice identified Chung as the shooter, first in the beginning of the interview and later after Lay had identified defendant Ryoo as the driver but had feigned ignorance about the shooters identity and (2) Deputy Lowe said several times that he already knew the truth. We are not persuaded by this argument. The deputy first stated that Silent (defendant Chung, see fn. 4, supra) was the shooter in the context of summarizing the information he had, including Lays presence in the Camry. The deputy took this approach only after Lay had given a series of evasive or false answers to questions about his presence at the party, his relationship with defendants, his connection to the HKB gang, his street moniker, and his knowledge of the shooting. Because Lay was attempting to stonewall Deputy Lowes effort to learn the truth about the events, it was not improper for the deputy to respond by setting forth the relevant facts (including identifying defendant Chung as the shooter) before again asking Lay whether he was a participant or witness in the shooting, explaining that a witness would not be charged and stating, in a preemptive effort to avoid false answers from Lay, that he (Deputy Lowe) knew the truth. The interview proceeded for a while (seven pages in the transcript) before Lay ultimately identified defendant Chung as the shooter after the deputy had stated Hes a good friend of yours, Justin. Given the manner in which the interview had proceeded, we conclude that Deputy Lowes approach, including his remarks about defendant Chungs role and his assertions that he knew the truth, was not a ploy[] which, under all the circumstances, [was] so coercive that [it] tend[ed] to produce a statement [from Lay identifying defendants roles in the shooting] that [was] both involuntary and unreliable. (People v. Ray, supra, 13 Cal.4th at p. 340.)

Defendants next rely on several cases to support a contrary conclusion. In so doing, they attempt to equate Deputy Lowes questioning with questioning found to be coercive in those matters. Each of the three cases is distinguishable.

Defendants first cite People v. Lee, supra, 95 Cal.App.4th 772 (Lee) in which the appellate court reversed a first degree murder conviction because it found that a witnesss statement, admitted (as here) at trial as a prior inconsistent statement, was coerced and inherently unreliable. The witness gave the statement incriminating the defendant in the following context. First, the witness agreed to take a polygraph test. After touting the accuracy of the polygraph machine to the witness, the officer asked him if he had shot the victim or if he knew who had. The witness replied no to those questions. (Id. at p. 782.) The officer then told him that the results of the polygraph test indicated that the witness himself was 97 percent likely to be the killer and that the police had other witnesses that point[ed] directly at him.[8] (Id. at p. 783.) The officer explained that if he turned in the test results, the witness would be charged with first-degree murder. The officer stated that the witness could avoid being prosecuted for first-degree murder only if he named the defendant as the shooter. (Ibid.) The officer posited a specific motive for the defendant having killed the victim (jealousy). (Id. at pp. 784.) The officer repeatedly stated that either the witness or the defendant would be prosecuted for the murderthe choice was the witnesss. (Id. at pp. 784 & 785.) Ultimately, the witness tersely identified the defendant as the shooter. (Id. at p. 785.)

The appellate court held that the trial court had erred in finding that the witnesss statement was not the product of coercion. It reasoned that the witness could have reasonably concluded that the only way to avoid a first degree murder prosecution was to identify the defendant as the shooter. It concluded: [T]he interrogation of [the witness] was not designed to produce the truth as [the witness] knew it but to produce evidence to support a version of events the police had already decided upon. In this respect, the police crossed the line between legitimate interrogation and the use of threats to establish a predetermined set of facts. (Lee, supra, 95 Cal.App.4th at p. 786.)

Lee is clearly distinguishable. There, the interrogating officer repeatedly and relentlessly told the witness what he wanted to hear (identify the defendant as the murderer) and threatened to charge the witness with first degree murder if he did not name the defendant as the shooter. Here, in contrast, Deputy Lowe simply urged Lay to tell the truth and accurately represented that if he (Lay) was only a passenger-witness, he would not be subject to criminal prosecution. As Lee itself acknowledged, [i]t is . . . well established exhortations directed to the suspect or witness to tell the truth are not objectionable. (People v. Lee, supra, 95 Cal.App.4th at p. 785.) Stated another way, Deputy Lowes questioning did not go beyond exhortations to tell the truth and legitimate threats of prosecution unless Lay truthfully told what he knew about the shooting to coercive questioning.

Defendants next cite In re J. Clyde K. (1987) 192 Cal.App.3d 710.[9] There, a police officer detained three juveniles who were carrying large boxes in a high theft area. The officer told each juvenile: If you tell me a lie, and I find out that the boxes are stolen, you will go to jail, but if you tell me the truth you will get a citation. (Id. at p. 720.) Eventually, one of the juveniles confessed and that confession was introduced into evidence against the other two. The appellate court found the officers approach was coercive because his statement impermissibly led the young boys to expect more lenient treatment in exchange for their confessions. The potential benefits that the boys could expect (lesser punishment and immediate release with only a citation) were clearly and expressed spelled out by [the interrogating officer] himself. (Id. at p. 722.)

This case is clearly different because there was no promise of leniency that prompted Lay to incriminate defendants. That is, Deputy Lowe offered no quid pro quo (expressly or implicitly) to Lay if he implicated the others. Instead, the deputy simply encouraged Lay to tell the truth. As In re J. Clyde K., supra, 192 Cal.App.3d 710 observed: [A]n officer may comment upon the realities of the situation without rendering a subsequent confession involuntary. (Id. at p.722, fn. 4.) The only reason that principle did not apply to the juveniles confession was because the officer expressly promised the boys leniency if they confessed [whereas in] both the cases cited by the Attorney General [to support his argument that the questioning was not coercive], the [reviewing] court explicitly noted that no such express promise had been made. (Ibid.)

Lastly, defendants rely upon People v. McClary (1977) 20 Cal.3d 218 (McClary),[10] a case in which the court reversed a first degree murder conviction based upon admission of incriminating statements made by the defendant in the second of two police interrogations. The police had arrested the defendant and her companion Sonny for the murder of an elderly woman. In the first interrogation, defendant denied that she or Sonny had murdered the woman although she admitted that they had stayed with the victim for a few days. (Id. at p. 223.) The police responded that they had sufficient evidence to prosecute her for murder; that they could prove she was lying; that she could be prosecuted as a principal or accessory after the fact depending on her knowledge and involvement; and that unless she changed her story and confessed to her true involvement, she would be prosecuted for murder. (Id. at pp. 223-224.) In particular, one of the officers told her: You can tell us the truth. Youre [sic] involvement can be less than what we think it is right now. It might be more. I dont know. Youre the one thats going to have to say. You can either be a direct participant, or you can be an accessory after the fact. I dont know which one. Youre the one that knows. What were going to try you for unless your story turns out to be true and we can prove your part of the story true, youre going to be tried as a principal, as the person who committed the murder. Do you understand that? Unless your story changes to where you can say something else happened and we can prove you true, then youre going to be tried the other way. (Id. at pp. 223-224, italics in original.) In addition, the police falsely told the defendant that she would face the death penalty if charged with murder. (Id. at pp. 223 & 229.) In the second interview, the defendant gave the police details of the crime, stating that she and Sonny had killed the victim after the victim had tried to stab them. (Id. at p. 225.)

The Supreme Court found that the statements in the second interview were involuntary. It explained: [T]he officers repeatedly branded defendant a liar, and advised her that unless she changed her statement and admitted the true extent of her complicity, she would be charged as a principal to murder [but then] strongly implied that if [she] changed her story and admitted mere knowledge of the murder, she might be charged only as an accessory after the fact. . . . [] . . . [T]he threats of punishment and the promises of leniency echoed in the continuum between the two [interviews] to a degree which renders her statements in the second interview involuntary and inadmissible. (McClary, supra, 20 Cal.3d at p. 229.)

McClary is distinguishable. Deputy Lowe did not repeatedly brand Lay a liar, falsely state the punishment to which Lay was exposed, state (expressly or impliedly) that Lay had to change his story and incriminate defendants or be charged with murder, or assert that if Lay did change his story he would face only lesser charges or some other form of leniency. Instead, the deputy told Lay to tell the truth and explained the consequences thereof. The deputys approach was not so coercive as to produce an untrue statement.

3. Discussion Lays Individual Characteristics and the Circumstances of his

Interview Do Not Support a Finding of Coercion

Defendants contend that Lays individual characteristics and the circumstances of his interrogation weigh strongly in favor of finding that his statement was involuntary. We are not persuaded.

The individual characteristics of an individual such as age, education and sophistication as well as the circumstances of the interrogation can be considered in determining whether his statements were coerced or voluntary. (People v. Neal (2003) 31 Cal.4th 63, 80.) In that regard, defendants accurately note that Lay, a 16-year-old high school student, was in custody and had been not advised of his Miranda rights. In addition, they rely upon the fact that Lay subsequently testified at the preliminary hearing that that he had felt compelled to make a statement in the interview or be charged with a serious crime. However, there was significant countervailing evidence. Lay was an acknowledged member of HKB and in custody for having committed a carjacking (a serious offense). Lay never complained during the interview that he felt pressured. And Lays preliminary hearing testimony (which defendants asked the trial court to consider in ruling upon the motion to exclude) demonstrated that he was a streetwise individual who consistently gave evasive answers to questions in order to avoid acknowledging that the interview with Deputy Lowe had occurred or that he had made certain statements in the interview. In denying the motion to exclude, the trial court implicitly found that the facts defendants relied upon did not establish that Lays statements were coerced. Substantial evidence supported that finding. (See In re Aven S. (1991) 1 Cal.App.4th 69, 77 [no coercion where record showed, among other things, that the juvenile was experienced in the ways of the juvenile justice system.].) We therefore will not revisit this issue. (People v. Boyer, supra, 38 Cal.4th at p. 444.)

B. DENIAL OF ACCOMPLICE INSTRUCTION RE MOON

Defendants contend that the trial court committed prejudicial error because it denied their request that the jury be instructed, pursuant to CALCRIM No. 334, that it should determine whether Moon was accomplice and if so, require corroboration of his testimony from a source other than another accomplice (e.g., Lay).

1. Factual Background

Defense counsel requested submission of the pattern accomplice instructions for both Moon and Lay. In regard to Moon, the defense relied upon Moons statements to the police (set forth earlier in our statement of facts), Moons trial testimony, and some law enforcement testimony.

Moons trial testimony essentially tracked his earlier statements to the police. Moon, called as a prosecution witness, conceded that he was a member of HKB and known as Little Wicked. He identified defendants, Lay, and Pak as fellow HKB members. He explained that Pak was a shot-caller, a leader type, who would set . . . up or direct other persons in the gang to commit crimes. Moon denied being a shot-caller himself or being right underneath Pak in the HKB hierarchy. Moon admitted that he had confronted the victims at the party. At some point, he believed that he saw defendant Chung with a gun at the party. Later, he saw defendant Chung and Lay leave the party. Moon testified that he had not brought any weapon to the party, had not told defendants to commit the shooting, had no part in the planning of the crimes, and had no knowledge that defendants intended to attack the victims. He was unaware of what had happened until defendant Chung telephoned him and said: Hey, we got them on the freeway. Moon was not surprised because word was going around [the party] that they [defendants and Lay] left.

In regard to Moons role in HKB, Deputy Lowe testified that Moon had told him that he was a shot-caller who would instruct other gang members. In a similar vein, Deputy Sheriff Jose Nanquil (the prosecutions gang expert) testified that in his expert opinion, Moon was one of the shot-callers in HKB who would direct younger members such as defendants and Lay.

In arguing for submission of the accomplice instructions, defense counsel urged: Moon instigated the altercation with these young men. He had to be pulled off. He was drunk. He was aggressive. He was challenging them, where are you from, and hes a shot-caller for HKB. So my position is that he could be an accomplice. The accomplice instruction does not require presence [at the crime scene]. If he somehow instigated or directed the conduct, he could be an accomplice requiring corroboration. [] . . . He did say that he was familiar with the gun that was present, was equivocal as to how he was familiar, whether hed seen it or not, but described it as a Smith and Wesson, wood grips on it, smooth wood-grain type of thing.

The prosecutor urged: I dont think there is any evidence to suggest there is only speculation that maybe he [Moon] called it. There is no one that can say yes, he did. The fact that he started the altercation is too far removed for it to fall into the natural and probable consequences theory. If he had gotten into an altercation and then someone pulled out a gun, then I would say yes. But he didnt do anything physically, and the shooting happened much later at a different time; so I think thats too far removed.

The trial court denied the defense request. It explained: I think that his [Moons] affirmative acts are too attenuated from the charges in this case. (The trial court did submit accomplice instructions in regard to Lay.)

2. Discussion

An accomplice is an individual liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given. ( 1111.) The testimony of an accomplice requires corroboration and must be viewed with caution. ( 1111; People v. Tobias (2001) 25 Cal.4th 327, 331.) The trial court is required to grant a defense request for an instruction directing the jury to determine whether a witness is an accomplice only if there is evidence from which the jury could find that the witness (here, Moon) was an accomplice. (People v. Lewis (2001) 26 Cal.4th 334, 369.) But if the evidence is insufficient as a matter of law to support a finding that a witness is an accomplice, the trial court may make that determination and, in that situation, need not instruct the jury on accomplice testimony. (People v. Horton (1995) 11 Cal.4th 1068, 1114.) Consequently, the issue on appeal is whether there was substantial evidence to support the defense request. Substantial evidence is evidence sufficient to deserve consideration by the jury, not whenever any evidence is presented, no matter how weak. (People v. Lewis, supra, 26 Cal.4th at p. 369.) We conclude that the evidence advanced to support the request for accomplice instructions was not substantial but speculative. (Ibid.) We therefore find no error.

To be an accomplice, the individual must be considered a principal under the law of aiding and abetting. That is, he must have guilty knowledge and intent with regard to the commission of the crime. (People v. Lewis, supra, 26 Cal.4th at p. 369.) His liability depends on whether he promotes, encourages, or assists the perpetrator[s] and shares [their] criminal purpose. (People v. Sully (1991) 53 Cal.3d 1195, 1227.) An aider and abettor shares the perpetrators specific intent when he knows the full extent of the perpetrators criminal purpose and gives aid or encouragement with the intent or purpose of facilitating the perpetrators commission of the crime[s]. (People v. Snyder (2003) 112 Cal.App.4th 1200, 1220, fn. 7.)

Here, the evidence established only that Moon shared gang membership with defendants and that he had verbally confronted the victims at the party, believing that they were members of a rival gang. Neither Moon nor anyone else physically assaulted the victims at the party. Moon observed either one of the defendants or Lay with a gun and later saw them leave the party after the victims. Following the shooting, defendant Chung telephoned Moon and told him what had happened. Nothing in this evidence reasonably suggested that Moon knew of defendants criminal intent when they left the party. No evidence reasonably suggested that Moon had spoken with defendants and encouraged or directed them to commit the crimes. On this record, the trial court properly determined as a matter of law that Moon was not an accomplice so that accomplice instructions were not required. (See, e.g., People v. Horton, supra, 11 Cal.4th at pp. 1114-1116.)

To support a contrary conclusion, defendants posit the following theory. Brian Moon was a shot-caller in the gang. He was the one who took the leadership role in confronting the suspected rival gang members. He was the one who knew exactly what the weapon used looked like. He knew the others left in the car. He was the one who received the news of the freeway shooting immediately after it was done. There was sufficient evidence for the jury to believe he intended the shooting or an act that naturally and probably resulted in the shooting, and that he encouraged or facilitated the offense. We are not persuaded.

Moons verbal confrontation with the victims at the party and his hierarchical position in HKB do not reasonably support the inference that he directed defendants to commit the off-site shooting. (Cf. People v. Medina (2009) 46 Cal.4th 913, 916, 922-924 [murder and attempted murder were natural and probable consequences of a verbal challenge and fistfight between rival street gangs].) No evidence was presented that Moon ever spoke with either defendant at the party or gave them a weapon. Because the record is devoid of any evidence of Moon interacting with defendants at the party, defendant Chungs telephoning Moon shortly after the shooting does not reasonably support the inference that Moon had directed the shooting.

To support an argument that Moon did interact with defendants at the party, defendants rely upon the singular fact that a member of Yaos group (Kelvin You) testified that as the group left the party, he saw Moon, Pak, and several other unidentified individuals speaking amongst themselves on the porch. You did not hear their conversation but did testify that the group did not yell any threats at them as they left. From this evidentiary snippet , defendants argue: The jury could reasonably infer that [defendants and Lay] participated in the conference, since it hardly makes sense that [defendants] or [their] fellow soldiers would embark on a mission to shoot the victims for the benefit of their gang without any authorization from shot-caller Moon, especially since they had to pass right by Moon on their way to conduct the shooting. We reject this argument as pure speculation. Neither You nor any other witness placed defendants in that conversation, let alone heard its contents. Absent evidence that Moon interacted with defendants either in that conversation or at some other point during the party, it is unreasonable to infer that he instructed them to commit the shooting.

Lastly, defendants argue that a snippet from Lays interview with the deputies establishes that Moon directed the shooting. We disagree. Toward the end of the interview, Lay said that the shooting had been called . . . out at the party by Little Wicked (Moons street moniker) and that defendants were just following orders. However, when Deputy Lowe asked follow up questions to determine how Lay knew that, Lay conceded no one had told him that Little Wicked (or anyone else for that matter) had instigated the shooting and that he was

not sure but that might have happened.[11] Given the equivocal and speculative nature of Lays statements about Moons potential involvement, his initial reference to Moons role in the shooting was insufficient to require submission of the accomplice instruction.

In sum, because neither the evidence nor the inferences to be drawn therefrom would support the prosecution of [Moon] as an accomplice for the offenses at issue in this case, the trial court properly determined that, as a matter of law, [Moon] was not an accomplice so that the jury was not required to determine the question. (People v. Horton, supra, 11 Cal.4th at p. 1116.)

C. SUFFICIENCY OF THE EVIDENCE TO SUPPORT THE STREET GANG ENHANCEMENT

Defendants contend that the evidence is insufficient to support the street gang enhancement ( 186.22, subd. (b)(1)(A)). In particular, they urge the prosecution failed prove that HKB had as one of its primary activities the commission of one or more of the [statutorily] enumerated offenses but, instead, only established . . . that members of the gang incidentally [and] occasionally committed crimes.

1. Factual Background

As noted earlier, the prosecution called Deputy Nanquil as an expert witness. His work had involved gangs, including Asian gangs since 1989. For the last five years, he has been the team leader for the Asian Gang and Special Problems Unit, investigating and prosecuting Asian gang crimes. Before that assignment, he developed a solid background in working with gangs. He had worked as an Asian gang liaison, had been the team leader of the suppression unit of the Asian Gang Task Force, had interviewed hundreds of jailed gang members and had attended classes and read materials provided by Asian gang investigators. This case marked the eighth time that he had qualified in court as a gang expert.

Deputy Nanquil first heard of the HKB gang in 1997 or 1998. Based upon his conversations with other detectives, he believed that HKB is one of the smaller gangs, with between 15 to 30 members. When asked about his direct contact with HKB members, he replied: Approximately seven admitted, and two that were associates. The five in 2001 for my partners case, it was a kidnapping and assault with a deadly weapon, and four of my own doing a traffic stop with an arrest for possession of marijuana and marijuana for sales. In addition, Deputy Nanquil described two arrests of known HKB members. The first occurred in May 2006. Four HKB members (including Moon) were arrested in a parked car; the police found a handgun in the vehicle. The second occurred in November 2006. Moon was arrested for attempted robbery and found to be in possession of a handgun. (This was the case for which Moon was in custody when he spoke with the police about the August 17 shooting.) Lastly, Deputy Nanquil explained that one role of the gangs shot-caller (such as Moon or Pak) was to direct younger members to engage in violent work to prove themselves to the gang leadership. In particular, a shot-caller would order someone like Linora Lay to take a gun, go get in a car and go seek revenge on those believed to be Wah Ching members.

When the prosecutor asked Deputy Nanquil his opinion of the primary activities of the HKB gang based upon his experience and conversations with other law enforcement officers, the deputy responded: Im aware of the ones Ive been involved with which is kidnapping, and assault with a deadly weapon, and possession of marijuana, and possession of marijuana for sales. Ive also done some investigation on [HKB] as far as other crimes they have committed over the last six or seven years.

To prove one predicate offense, the prosecutor introduced into evidence a certified minute order reflecting that in April 2005 John An was convicted of assault with a deadly weapon ( 245, subd. (a)(1)). Deputy Nanquil testified that An was a HKB member.

The courts instructions to the jury about the street gang enhancement explained that a criminal street gang was a group that, among other things, has, as one or more of its primary activities, the commission of assault or kidnapping and that in order to qualify as a primary activity, the crime must be one of the groups chief or principal activities rather than an occasional act committed by one or more persons who happen to be members of the group. In addition, the trial court instructed the jury that if it found defendants guilty of a crime in this case, you may consider that crime in deciding whether one of the groups primary activities was commission of that crime.

The jury found the street gang enhancement to be true as to both defendants.

2. Discussion

To establish that a group such as HKB is a criminal street gang within the meaning of section 186.22, subdivision (f), the prosecution must prove three essential elements: (1) that there be an ongoing association involving three or more participants, having a common name or common identifying sign or symbol; (2) that the group has as one of its primary activities the commission of one or more specified crimes; and (3) the groups members either separately or as a group have engaged in a pattern of criminal activity. [Citation.] (People v. Vy (2004) 122 Cal.App.4th 1209, 1222.) Defendants challenge to the sufficiency of the evidence concerns only the second element: whether HKB has as one of its primary activities the commission of one or more of the criminal acts set forth in subdivision (e) of section 186.22. Subdivision (e) includes murder, attempted murder, kidnapping, assault with a deadly weapon, and shooting at an occupied motor vehicle. The phrase primary activities, as used in the gang statute, implies that the commission of one or more of the statutorily enumerated crimes is one of the groups chief or principal occupations. [Citation.] That definition would necessarily exclude the occasional commission of those crimes by the groups members. (People v. Sengpadychith (2001) 26 Cal.4th 316, 323.)

Proof of the gangs primary activities can be supplied in different ways. The prosecutor can offer evidence of past crimes to establish that the groups members consistently and repeatedly have committed criminal activity listed in the gang statute. (People v. Sengpadychith, supra, 26 Cal.4th at p. 324.) In addition, the jury can consider the circumstances of the charged crimes on the issue of the groups primary activities. (Id. at p. 320.) Lastly, expert testimony can establish a gangs primary activities. The testimony of a gang expert, founded on his or her conversations with gang members, personal investigation of crime