P. v. Herrera

Filed 9/28/06 P. v. Herrera 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 an order the Superior Court of Los Angeles County, Antonio Barreto, Jr., Judge. Affirmed as modified.

Marcia C. Levine, 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, Mary Sanchez and April S. Rylaarsdam, Deputy Attorneys General, for Plaintiff and Respondent.

__________________

INTRODUCTION

The defendant was charged by information in count 1 with murder (Pen. Code, § 187, subd. (a));[1] in counts 2 and 3 with willful, deliberate and premeditated attempted murder (§§ 187, subd. (a), 664); in count 4 with shooting at an occupied motor vehicle (§ 246); and in count 5 with throwing a substance at a vehicle (Veh. Code, § 23110, subd. (b)). The information also alleged as to count 1 that a principal used a firearm causing great bodily injury or death (§ 12022.53, subds. (d), (e)(1)); as to counts 1, 2 and 3 that a principal used a firearm (§ 12022.53, subds. (b), (c), (e)(1)); and as to counts 2, 3 and 4 that defendant personally used a firearm (§ 12022.5, subd. (a)(1)). It was also alleged as to all counts that a principal used a firearm (§ 12022, subd. (a)(1)) and that the crimes were committed for the benefit of, at the direction of, and in association with a criminal street gang (§ 186.22, subd. (b)(1)). The information additionally alleged that defendant had previously been convicted of various felonies within the meaning of sections 667, subdivisions (a) and (b) through (i), 1170.12 and 667.5, subdivision (b).

Prior to trial, the prosecution dismissed the Vehicle Code section 23110 charge. The section 12022.5, subdivision (a), allegation as to count 4 and the section 12022.53, subdivision (b), allegation as to count 1 were dismissed pursuant to section 1118.1.

The jury returned guilty verdicts of second degree murder in count 1, of attempted first degree murder in counts 2 and 3, and of shooting into an occupied motor vehicle in count 4. The remaining special allegations as to all counts were found to be true. After defendant waived his right to a jury trial on the prior conviction allegations, the trial court found the allegations true. The trial court dismissed the strike allegations pursuant to section 1385.

Probation was denied. On count 1, defendant was sentenced to 15 years to life for second degree murder, plus 25 years to life for the great bodily injury gun enhancement (§ 12022.53, subds. (d), (e)(1)), for a total of 40 years to life. Sentences on the gang enhancement (§ 186.22., subd. (b)) and the firearm enhancement (§ 12022, subd. (a)) on count 1 were stayed. On counts 2 and 3, defendant was sentenced to life in prison with the possibility of parole, plus 20 years to life for the great bodily injury firearm enhancements (§ 12022.53, subd. (c)), plus 10 years for the gang enhancements (§ 186.22, subd. (b)(1)). The sentence on count 2 was ordered to run consecutive to the sentence on count 1, and the sentence on count 3 was ordered to run concurrent to the sentence on count 1. The sentence of five years on count 4 was stayed, and the sentences on the firearm enhancements pursuant to section 12022.5, subdivision (a), for counts 1, 2, 3 and 4 were stayed. Sentences on the remaining allegations for all counts were stricken.

On appeal, defendant claims juror misconduct, challenges the gang enhancements and claims error related to the failure to disclose filming of the K-9 unit at the scene for Animal Planet. We strike the gang enhancements imposed on counts 2 and 3. In all other respects, we affirm the judgment.

FACTUAL BACKGROUND

In the evening on December 27, 2000, at about 8:00 p.m., a number of shots were fired at a vehicle occupied by members of the “Sotel” gang as the car was in the intersection of Cloverfield Boulevard and Virginia Avenue, “Santa Monica” gang territory, in Santa Monica. One shot killed a passenger in the vehicle, Benjamin Medina (Medina). The car crashed into two cars parked at the curb on Cloverfield. The driver and other passenger attempted to drive away, but ultimately fled on foot. Defendant confronted them as they got out of the vehicle and fired a shot. The prosecution contended that the defendant was part of a gang attack on the car. The prosecution also contended that the defendant fired the shot at the other two occupants of the car as they fled. The defense theory was that defendant was not involved in the shooting of Medina, and he fired one shot into the ground as a warning either because he feared the other occupants were armed or because he did not want them to leave the scene of the car accident.

The parties entered into several stipulations. The parties stipulated that the first 911 call was made at 8:02 p.m., and the second came at 8:03 p.m. The cause of Medina’s death was two gunshot wounds, one to the head and one to the lower back. The wound to the head was fatal. Medina had a blood alcohol content of .11. The car driven by Medina was shot at seven times with a nine millimeter, semiautomatic handgun.

The parties further stipulated that defendant did not fire the nine millimeter gun. Defendant later was arrested for being in possession of a .38 caliber handgun. A .38 caliber casing and jacket found at the crime scene had been fired from the .38 caliber handgun found in defendant’s possession at the time of his arrest. The shot fired from the .38 caliber handgun did not hit Medina or his car.

The parties also stipulated that if Lizette Castillo was called to testify she would testify that she was in an apartment at 2030 Cloverfield Boulevard when she heard the sound of gunshots, followed by a crash. She went outside her apartment and saw that a car had crashed into a parked car. A man with dark-colored hair was in the street and approached the parked vehicle. He had his arm extended straight in “such a manner that she believed he was pointing a handgun at the vehicle’s occupants.” She looked away and heard a gunshot, but she did not actually see the man shoot a gun. Seven other witnesses, if called to testify, would claim they heard four to five gunshots and then one shot. Two of those witnesses would have testified that they heard the one shot after a car crash.

According to prosecution gang expert, Santa Monica Police Officer Eric Uyeno, the Santa Monica gang had approximately 25 to 40 members. The shooting occurred in Santa Monica territory, about a mile from Sotel territory. He believed defendant was a “shot-caller” with the gang. A photograph of defendant throwing the Santa Monica gang sign was shown to the jury. Several pictures depicting defendant’s Santa Monica gang tattoos were also shown to the jury. Medina was a Sotel gang member. In December 2000, Sotel was not at peace with Santa Monica, and there was sporadic shooting between the gangs.

Defendant testified on his own behalf. He indicated that on December 27, 2000, about 8:00 p.m., he was taking down the family Christmas tree when he heard five or six shots and then a car crash. He grabbed his gun and went outside.

The car that crashed was trying to leave, so defendant yelled, “Freeze, don’t move,” hoping to detain the car for the police. The driver and passenger exited the vehicle. Defendant took the gun from his pants and held it in front of him. He yelled for the occupants to get back in the car, but they did not comply. Defendant took four or five steps back. As he got to the sidewalk, the passenger made a gesture that made defendant believe the passenger had a gun, although defendant did not see one. At that point, defendant fired one shot at an angle toward the ground. He was not intending to kill anyone. He wanted them to leave and was hoping to scare them because he thought one of them had a gun. The two men fled.

Defendant admitted that he lied during the videotaped statements he gave after the incident, but claimed he did so because he was on parole and feared going back to prison. He lied about throwing a bottle at the suspects and not having a gun. He also lied about where he hid the gun and seeing a .38 caliber gun in the victim’s hand.

Defendant believed the occupants of the car were members of a rival gang. He claimed he shot into the sidewalk even though he had a rival gang member in the sight of his gun and was in fear for his life. He claimed he was no longer an active member of the Santa Monica gang. He also denied that he was a shot-caller for the Santa Monica gang.

DISCUSSION

1. Whether Defendant was Deprived of his Rights to Due Process and a Fair Trial due to Juror Misconduct

Defendant filed a motion for a new trial alleging juror misconduct. He claimed that the foreperson’s comments to the jury that if they failed to convict the defendant, he would have to be retried, which would cost the taxpayers money, was juror misconduct. Defendant asserts that the comments of the foreperson impermissibly injected extraneous information into jury deliberations and amounted to an improper Allen[2] charge. We disagree.

The jurors began their deliberations on September 5, 2002. They deliberated for several days and asked for readback of testimony during their deliberations. They reached a verdict on September 12, 2002. The jurors were polled in open court and all affirmed their guilty verdicts.

The motion for a new trial included a declaration from one of the jurors, claiming that she contacted defense counsel on September 15, 2002. According to the juror’s declaration, at the beginning of deliberations, the jurors were split 6-6, with the foreperson voting to convict. After three days of deliberations, the jury was still unable to reach a verdict and the juror wanted to tell the judge that they were deadlocked. The foreperson refused to do so. The foreperson insisted that if the jury did not reach a verdict the case would have to be retried, and it would cost the taxpayers too much money. On the fifth day of deliberations, the two jurors who were still holding out for acquittal finally agreed with the other jurors and voted for guilt.

The trial court ruled that once the jurors entered their verdict in open court “there is a very strong presumption, a very high presumption of the validity of the proceeding.” The court noted that it was very hard to impeach a verdict and rejected the argument that the comments to the jury were the equivalent of an Allen charge or a dynamite instruction. The court found that the comments coming from a fellow juror were much different than coming from the court or court officer.

When a defendant moves for a new trial based on juror misconduct, the trial court must conduct a three-step inquiry. It must consider (1) whether the affidavits supporting the motion for new trial are admissible under Evidence Code section 1150,[3] (2) whether the facts establish that misconduct occurred, and (3) if misconduct occurred, whether it was prejudicial. (People v. Duran (1996) 50 Cal.App.4th 103, 112-113; People v. Dorsey (1995) 34 Cal.App.4th 694, 703-704.) A trial court is given broad discretion in ruling on each of these questions, and its rulings will not be disturbed without a showing of a clear abuse of discretion. (Duran, supra, at p. 113; Dorsey, supra, at p. 704.)

As to the first step, whether Evidence Code section 1150 permitted the admission of the juror’s declaration, the trial court did not address whether the declaration by the juror was admissible. The prosecution argued that paragraph five of the declaration, which included the information that the foreperson advised the jury that a retrial would be required if they did not reach a verdict and would cost the taxpayers money, was the only admissible evidence, as the remainder of the declaration went to the juror’s thought processes. Any evidence as to how the statements, conduct, or events influenced a juror or affected the jurors’ mental processes in reaching their verdict is inadmissible. (In re Hamilton (1999) 20 Cal.4th 273, 294.)

Defendant argues that part of paragraph 4 and paragraph 6 were also admissible. We concur. In paragraph 4, the juror explained that as deliberations progressed, those voting for conviction became more and more insistent that those voting for acquittal change their minds. This portion of paragraph 4 is narrative. In paragraph 6, the juror continued to summarize the events that took place and indicated by the fifth day of deliberations, there were two jurors who were voting for acquittal and they eventually changed their votes. This part of the declaration is admissible pursuant to Evidence Code section 1150.

The second step in reviewing an allegation of misconduct is to determine if the comments amount to misconduct. The trial court determined that they did not. Jurors commit misconduct if they “express opinions based on asserted personal expertise that is different from or contrary to the law as the trial court stated it or to the evidence.” (People v. Steele (2002) 27 Cal.4th 1230, 1266.) It is not misconduct for a juror to use his or her experience and knowledge in evaluating and interpreting the evidence. (Ibid.)

In People v. Riel (2000) 22 Cal.4th 1153, 1218-1219, the defendant brought a new trial motion claiming juror misconduct due to the fact that one of the jurors told other jurors that if they imposed the death penalty, the judge would just commute the sentence to life in prison without possibility of parole. This comment was legally incorrect. The decision to commute the sentence to life in prison is discretionary with the court. The Court of Appeal found that the trial court did not abuse its discretion in denying the new trial motion finding that the statement was merely an opinion or guess by one juror as to what might happen to the case. In the instant case, according to the juror’s declaration, the foreperson surmised that if they did not reach a verdict, retrial would be required and it would cost the taxpayers money. This was simply the foreperson’s belief as to what would happen if a verdict was not reached in the instant case.

In People v. Orchard (1971) 17 Cal.App.3d 568, 572, the foreperson “chastised” the holdout juror for 10 to 15 minutes in front of the other jurors. This caused her to be embarrassed and humiliated, so she voted for guilt. The appellate court found no misconduct. Similarly, in People v. Keenan (1988) 46 Cal.3d 478, the California Supreme Court determined that a juror who pointed his finger at the sole holdout juror and told her that he would “kill her” if she did not vote for the death penalty did not commit misconduct. (Id. at p. 540.) The foreperson’s statement about a retrial and the cost involved is far less offensive or overbearing than the conduct that occurred in Keenan and Orchard.

In People v. Gainer (1977) 19 Cal.3d 835, the California Supreme Court disapproved of a trial court giving an Allen or dynamite instruction that informs minority jurors to consider the majority views and implies that the case will be retried if a decision is not reached. (Id. at pp. 840-841.) There is certainly a difference in the trial court, with its superior knowledge of the law and the power and authority of the state behind it, giving an Allen type instruction to the jurors and the juror foreperson discussing a retrial if the jury is unable to reach a verdict. There is no evidence that the foreperson had any legal background or cited any authority for his belief that if the jury was unable to reach a decision, the case would be tried again at an expense to the taxpayers.

2. Whether There is Sufficient Evidence to Support the Gang Enhancement

The People alleged that the offenses were committed to benefit a criminal street gang under section 186.22, subdivision (b). This allegation also made the firearm enhancement under section 12022.53, subdivision (d), alleged in count 1, which usually applies only to a defendant who personally discharges a firearm, applicable to defendant under section 12022.53, subdivision (e).[4]

Defendant asserts that the evidence was insufficient to prove that the Santa Monica gang had as one of its primary activities the commission of one or more of the criminal acts enumerated in paragraphs (1) to (23) of subdivision (e) of section 186.22.

The jury was not instructed with the standard instruction usually given when a gang enhancement is alleged, CALJIC No. 17.24.2.[5] The trial court instead prepared its own instruction to the jury as follows:

“It is alleged as to Counts I, II, III and IV, that the crime was committed for the benefit of, at the direction of, or in association with a criminal street gang and that said crime was committed with the specific intent to promote, further or assist in any way criminal conduct by gang members in violation of Section 186.22(b) of the Penal Code.

“‘Criminal street gang’ means any ongoing organization, association, or group of three or more persons, whether formal or informal, (1) having as one of its primary activities the commission of one or more of the following criminal acts, Robbery (211 P.C.) and Attempted Murder (664/187 P.C.), (2) having a common name or common identifying sign or symbol, and (3) whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.

“Thus, if you find the defendant guilty of Counts I, II, III, or IV, you must determine whether the commission of said offense was done in violation of Section 186.22(b)(1) of the Penal Code as defined in this instruction.”

Defendant argues that the instruction on the gang enhancement omitted an element of the enhancement, i.e., the definition of “primary activities.” While the trial court did not give CALJIC No. 17.24.2, the instruction given by the trial court did instruct the jury that the requisite “primary activities” included the commission of specified criminal acts, robbery and attempted murder. While the instruction given by the trial court did not otherwise define “primary activities,” the definition of primary activities included in CALJIC No. 17.24.2 was not required. In People v. Woodward (2004) 116 Cal.App.4th 821, 841, the court stated as follows: “‘When a word or phrase “‘is commonly understood by those familiar with the English language and is not used in a technical sense peculiar to the law, the court is not required to give an instruction as to its meaning in the absence of a request.’” [Citations.] A word or phrase having a technical, legal meaning requiring clarification by the court is one that has a definition that differs from its nonlegal meaning. [Citation.] . . .’ [Citation.] However, absent a request, the court has no duty to define terms which are commonly understood by those familiar with the English language. [Citation.]” “Primary activities” is made up of terms commonly understood by those who speak English, and thus its definition was not required.

Defendant also argues that the evidence was insufficient to establish the primary activities of the gang. We disagree. The defense indicates that the only evidence related to the elements of the gang came from Officer Uyeno. He described the membership, territory, and identifying color and signs for the Santa Monica gang, but he did not offer an opinion as to the primary activities of the gang.

There was sufficient evidence to support the “primary activities” element of the gang enhancement. In People v. Galvan (1998) 68 Cal.App.4th 1135, the defendants contended that the trial court erred by allowing the jury to consider the present offenses to establish the primary activities element of the gang enhancement. The Court of Appeal rejected the claim, holding that “either prior conduct or acts committed at the time of the charged offenses can be used to establish the ‘primary activities’ element of the gang enhancement offense.” (Id. at p. 1140.)

The California Supreme Court in People v. Sengpadychith (2001) 26 Cal.4th 316 held that evidence of either past or present criminal acts listed in subdivision (e) of section 186.22 is admissible to establish the statutorily required primary activities of the alleged criminal street gang. (Id. at p. 323.) The court noted that while the current offense is relevant in deciding whether the gang’s primary activities are those included in the statutes offenses, “[t]he phrase ‘primary activities,’ as used in the gang statute, implies that the commission of one or more of the statutorily enumerated crimes is one of the group’s ‘chief’ or ‘principal’ occupations. (See Webster’s Internat. Dict. (2d ed. 1942) p. 1963 [defining ‘primary’].) That definition would necessarily exclude the occasional commission of those crimes by the group’s members.” (Sengpadychith, supra, at p. 323.)

In the instant case, the prosecution presented evidence that Jose Campos, a known Santa Monica gang member, had prior offenses of robbery, committed on or about July 18, 1998, and attempted murder, committed on or about June 14, 1998. Defendant’s convictions of murder and shooting into an occupied vehicle, both listed in subdivision (e) as included offenses (§ 186.22, subds. (e)(3), (e)(5)), also showed the criminal nature of the primary activities of the gang.

Sergeant Valdemar, while expressing no expertise in the workings of the Santa Monica gang, testified that all of the Southern California Latino gangs were controlled by the Mexican Mafia and all were modeled the same way. Sergeant Valdemar testified that all gang members are expected to “earn [their] own living by doing one of the traditional lines of occupation. For instance, robbery, burglary, car thieving, selling dope, or some other respected criminal activity. . . .” The clear inference was that since all Latino gangs operated in a consistent way and were a part of the Mexican Mafia, the Santa Monica gang operated this way as well.

3. Whether the Animal Planet Taping should have been Disclosed

Defendant contends that the People violated Brady v. Maryland (1963) 373 U.S. 83, 87 by withholding exculpatory evidence of a videotape from the Animal Planet television show that depicted the dogs and handlers who performed scent tracking in this case.

After the trial, but before the sentencing of defendant, the prosecutor informed the trial court that the victim’s sister had seen a show on Animal Planet that involved the instant case. The videotape showed the dog handler, Hamm, and Detective Steiner. Neither the prosecutor nor defense counsel was aware that the dog tracking had been videotaped.

The prosecutor turned over to the trial court the videotape of the aired portion that he obtained from Detective Steiner. The trial court and defense counsel viewed the tape. The videotape is from the Animal Planet show K9 to 5, and it shows dog tracking at the crime scene by two dogs, Scarlett and Knight. Scarlett is shown walking down several streets, crossing the street and ending at the threshold of an apartment complex. The narrator explains that the entire time Scarlett was tracking was 45 minutes. Knight is shown ending at an apartment complex after ascending one set of stairs.

Defendant filed a motion for new trial based upon a violation of Brady and based upon ineffective assistance of trial counsel for stipulating to admission of inadmissible dog scent evidence. Defendant argued that the videotape was exculpatory because it would have shown Detective Steiner testified incorrectly. The prosecution filed opposition and argued that the evidence was not exculpatory. The prosecution argued that the tape did not contradict Detective Steiner’s testimony and a new trial was not an effective remedy, because dog scent evidence would not have been admissible.[6] The prosecution also attached parts of Detective Steiner’s police reports from the murder book that detailed the dog tracking route.

At the hearing on the motion for new trial, defense counsel argued that the videotape was material to impeach witnesses, in that it contradicted Detective Steiner’s testimony that the dogs went to defendant’s house and then to a garage. The tape shows that the dogs went to an apartment complex and then up the stairs, not into a garage.

Defense counsel further argued that it was the prosecution’s theory that the shooter went into the garage and the fact that the dogs did not go into the subterranean garage defeats the prosecution theory that defendant worked in concert with the shooter. Counsel added that, in a new trial, although dog tracking evidence would not be admissible, Detective Steiner could be impeached by his inconsistent statements at the previous trial.

The prosecutor argued that defendant could not show prejudice, because the evidence that he fired a weapon was strong. The prosecutor further indicated that the videotape merely depicted “snippets” of the dogs tracking in the case. The dogs’ tracking ended at the apartment complex that had a subterranean garage. The prosecutor additionally stated that the prosecution never argued the theory that the shooter and defendant got together in the garage or that was the location the shooter went after the shooting. The prosecutor felt that the videotape had “zero exculpatory value.”

The trial court assumed for the sake of its ruling that Detective Steiner had a duty to turn over the videotape. While the videotape showed third party culpability, the jury was already aware of that issue. The trial court felt that the videotape “at best” would show some third party involved in the shooting went into the apartment complex. Additionally, the videotape did not establish that Detective Steiner committed perjury. The trial court found it was not reasonably probable that defendant would have obtained a more favorable result had the videotape been disclosed and therefore defendant was not entitled to a new trial based on the failure to disclose the videotape.

The prosecution has a duty to disclose evidence to a criminal defendant when the evidence is both favorable to the defendant and material on either guilt or punishment. (In re Sassounian (1995) 9 Cal.4th 535, 543.) The failure to disclose information in violation of Brady requires reversal if the information is material to the outcome of the trial. (United States v. Bagley (1985) 473 U.S. 667, 678.) In Kyles v. Whitley (1995) 514 U.S. 419, the United States Supreme Court explained that a Brady violation is shown when “the favorable evidence could reasonably be taken to put the whole cause in such a different light as to undermine confidence in the verdict.” (Id. at p. 435, fn. omitted.) “[T]he question is not whether the State would have had a case to go to the jury if it had disclosed the favorable evidence, but whether we can be confident that the jury’s verdict would have been the same.” (Id. at p. 453.)

The information contained in the videotape was not material. The tape shows a tracking by Scarlett. It is impossible to determine in which direction she was traveling. Scarlett does stop at the edge of the apartment complex and a subterranean garage is visible. The tape then shows another dog, Knight, who ends up at the apartment complex, but ascends the stairs. While defendant claims that the videotape contradicts Detective Steiner’s testimony and would show that Scarlett took a direct route, this is not the case. During cross-examination, Detective Steiner explained the trail the dog took and that “ultimately we went down to a subterranean garage, and that point the dog lost scent.” In a review of the videotape, it cannot be determined what route Scarlett took. It is not possible to see the street signs. The video shows Scarlett stopping at the threshold of the apartment, but not going into the garage. The other dog, Knight, is shown going up the stairs, but the video does not depict what occurs after Knight went up the stairs. The videotape thus does not contradict Detective Steiner’s trial testimony.

The fact that Scarlett took 45 minutes to track the trail is not relevant. There was no testimony that Scarlett took a direct route. The videotape indicates that Knight followed the same trail.

Defendant also argues that the evidence withheld would have affected his introduction of the dog scent evidence or his counsel would have investigated who lived in the apartments in the complex. The possibility that a third party not known to defendant was the shooter is flatly contradicted by defendant’s own statements to the police and at trial. He indicated the shooter was a Santa Monica gang member.

It is also significant that in the murder book turned over to the defense prior to trial, there were reports from Detective Steiner, including statements that the two dogs went up the stairs of the apartment complex and stopped at two different apartment doors. The dog tracking evidence was available to defense counsel prior to trial, even without the videotape.

There is no reasonable probability that, if the videotape would have been disclosed, it would have resulted in a different result at trial. (People v. Ochoa (1998) 19 Cal.4th 353, 473). The videotape did not contradict the evidence at trial including defendant being a Santa Monica gang member, the shooting against rival gang members from the Sotel gang, defendant being in the area when the shooting occurred, firing a gun at the victims in the vehicle and his inconsistent statements to law enforcement. Hence, reversal is not required due to the failure to disclose the videotape.

4. Whether the Trial Court should have Ordered Disclosure of the Unpublished Portion of the Dog Tracking Tape

Defendant contends that the trial court violated his constitutional rights when it allowed the Discovery Channel to assert the California news shield law with regard to material not shown on Animal Planet television. Defendant requested all the taped footage, not only that which had been aired on the television program. The prosecution also sent a subpoena duces tecum for the materials to Discovery Communications (the parent company of Animal Planet). After the unaired portions of the tape were not disclosed, the trial court issued an order to show cause. In pleadings filed with the trial court, counsel for Discovery Channel argued that the parties were not entitled to the unpublished footage from the dog tracking program under California’s news shield law. Counsel argued that the evidence was not material to defendant’s case.

The trial court found that the show was protected under the news shield law. Then the court found that defendant had not made a sufficient showing to require disclosure of the unpublished material and discharged the order to show cause as to Discovery Communications.

California’s news shield law is set forth in article I, section 2, subdivision (b), of the California Constitution and Evidence Code section 1070.[7] In Delaney v. Superior Court (1990) 50 Cal.3d 785, the California Supreme Court explained the parameters of the shield law and set forth guidelines for courts to use in ruling on access to unpublished information in criminal cases. Delaney involved the nondisclosure of unpublished information by Los Angeles Times reporters who were present at a ride-along when the defendant was arrested for possession of brass knuckles (§ 12020, subd. (a)).

The Supreme Court explained that while the news shield law protects a newsperson from being adjudged in contempt of court for refusing to disclose either unpublished information or the source of information, whether published or unpublished, it does not provide a privilege. (Delaney v. Superior Court, supra, 50 Cal.3d at p. 797, fn. 6.) The court concluded that the shield law must give way to a defendant’s constitutional right to a fair trial and developed a two-pronged test to determine whether a reporter could be held in contempt for refusing to disclose unpublished information in a criminal trial.

First, the defendant must show a reasonable possibility that the unpublished information will materially assist his defense. (Delaney v. Superior Court, supra, 50 Cal.3d at p. 808.) The court stated that information “materially assists“ the defense if it would help exonerate the defendant, reduce the degree of the crime, reduce the charge to a lesser offense, impeach a prosecution witness, or, in a capital case, establish mitigating circumstances relevant to a determination of penalty. (Id. at p. 809.) The court also cautioned that while “reasonable possibility“ does not mean “detailed or specific,” it “must rest on more than mere speculation” on the defendant’s part. (Ibid.)

Second, if the defendant makes the necessary threshold showing, the trial court must balance the interests of the newsperson against those of the defendant. (Delaney v. Superior Court, supra, 50 Cal.3d at p. 809.) Factors the court may consider include: (a) whether the unpublished information is confidential or sensitive; (b) the interests sought to be protected by the shield law; (c) the importance of the unpublished information to the defendant; and (d) whether there is an alternative source of the unpublished information. (Id. at pp. 809-813.)

In reviewing the materiality argument, defendant argues that the unaired footage may have affected the defense’s tactical decision to submit dog-tracking evidence. Defendant argues that the unaired footage may have impeached Detective Steiner’s testimony about where Scarlett ended the trail, the amount of time that it took her to complete the route, opened up investigation into some other possible shooter and would have shown that the other dog, Knight, went upstairs.

Even assuming that we agree with defendant that the unaired portion is material, he still is not able to show that his interests outweigh the Discovery Channel’s rights. The scent evidence was not relevant to defendant’s defense, and there is an alternative source for the unpublished information. The prosecution submitted police reports prepared by Detective Steiner that detailed the route taken by Scarlett and Knight and that they scented on an apartment door. The trial court thus properly refused to mandate disclosure. (Delaney v. Superior Court, supra, 50 Cal.3d at pp. 809-813.)

5. Sentence on the Gang Enhancement

Defendant contends that the section 186.22, subdivision (b), enhancements imposed on counts 2 and 3 were unauthorized because the enhancement does not apply to indeterminate life sentences. The Attorney General concurs. When a life sentence is imposed, a gang enhancement does not add time to the sentence. It makes a defendant ineligible for parole “until a minimum of 15 calendar years have been served.” (§ 186.22, subd. (b)(4); People v. Lopez (2005) 34 Cal.4th 1002, 1007.) Therefore, these enhancements must be stricken.

CONCLUSION

The judgment is modified to strike the 10-year section 186.22 enhancements imposed on counts 2 and 3. As so modified, the judgment is affirmed. The clerk of the court is directed to prepare a modified abstract of judgment and forward a copy to the Department of Corrections. The true findings on the gang enhancements are to be noted on the abstract of judgment.

NOT TO BE PUBLISHED

JACKSON, J.*

We concur:

VOGEL, Acting P. J.

ROTHSCHILD, J.

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Property line Lawyers.

[1] All future statutory references are to the Penal Code unless otherwise indicated.

[2] Allen v. United States (1896) 164 U.S. 492.

[3] Evidence Code section 1150, subdivision (a), provides: “Upon an inquiry as to the validity of a verdict, any otherwise admissible evidence may be received as to statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly. No evidence is admissible to show the effect of such statement, conduct, condition, or event upon a juror either in influencing him to assent to or dissent from the verdict or concerning the mental processes by which it was determined.”

[4] At all times relevant to this case, section 12022.53, subdivision (e)(1), provided: “The enhancements specified in this section shall apply to any person charged as a principal in the commission of an offense that includes an allegation pursuant to this section when a violation of both this section and subdivision (b) of Section 186.22 are pled and proved.”

[5] CALJIC No. 17.24.2 provides: “It is alleged in Count[s] _____ that the crime[s] charged [was] [were] committed for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members.

“‘Criminal street gang’ means any ongoing organization, association, or group of three or more persons, whether formal or informal, (1) having as one of its primary activities the commission of one or more of the following criminal acts, _____, (2) having a common name or common identifying sign or symbol and (3) whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.

“‘Pattern of the criminal gang activity’ means the [commission of] [, or] [attempted commission of] [, or] [conspiracy to commit] [, or] [solicitation of] [, or] [sustained juvenile petition for] [, or] [conviction of] two or more of the following crimes, namely, ______, provided at least one of those crimes occurred after September 26, 1988, and the last of those crimes occurred within three years after a prior offense, and the crimes were committed on separate occasions, or by two or more persons.

“The phrase ‘primary activities,’ as used in this allegation, means that the commission of one or more of the crimes identified in the allegation, be one of the group’s ‘chief’ or ‘principal’ occupations. This would of necessity exclude the occasional commission of identified crimes by the group’s members. In determining this issue, you should consider any expert opinion evidence offered, as well as evidence of the past or present conduct by gang members involving the commission of one or more of the identified crimes, including the crime[s] charged in this proceeding.

“The People have the burden of proving the truth of this allegation. If you have a reasonable doubt that it is true, you must find it to be not true.

“Include a special finding on that question, using the form that will be supplied to you.

“The essential elements of this allegation are:

“1. The crime[s] charged [was] [were] committed for the benefit of, at the direction of, or in association with a criminal street gang; and

“2. [These] [This] crime[s] [was] [were] committed with the specific intent to promote, further, or assist in any criminal conduct by gang members.”

[6] Since defendant’s trial, the appellate court in People v. Willis (2004) 115 Cal.App.4th 379 determined that a proper foundation must be shown prior to admitting dog scent evidence and it is extremely difficult to lay a proper foundation for this type of scent pad evidence. (Id. at p. 386.)

[7] Article 1, section 2 of the California Constitution provides that members of the media, including television station personnel, may not be held in contempt for refusing to disclose unpublished information. Evidence Code section 1070 mirrors the constitutional provision.

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