P v. Smith

Filed 8/15/07 P v. Smith CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN

APPEAL from a judgment of the Superior Court for the County of Los Angeles, Jack Morgan, Judge. Affirmed.

Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson and Carl N. Henry, Deputy Attorneys General, for Plaintiff and Respondent.

__________________________

Alberto Joseph Smith appeals from the judgment entered after his conviction for attempted willful, deliberate and premeditated murder with special findings by the jury he had personally used a firearm and had committed the offense for the benefit of a criminal street gang. Smith contends the evidence was insufficient to support the conviction or the true finding on the gang enhancement and also argues the trial court abused its discretion in failing sua sponte to bifurcate trial of the gang enhancement allegation. Smith additionally contends use of two of the pattern jury instructions adopted by the California Judicial Council (CALCRIM Nos. 220 and 224 (2006)) violated his right to due process of law. We affirm.

FACTUAL BACKGROUND

On a Sunday afternoon in September 2005 David Stoneham, who admitted at trial he had smoked crack cocaine on a regular basis for the previous eight years, bicycled to the residence of Sean Ray Davis, a member of the 87th Street Gangster Crips, to buy crack cocaine. When Davis saw Stoneham, he told him to wait and walked to a house down the block. When Davis returned some minutes later, he told Stoneham he did not have any crack and walked across the street to a waiting gray Caprice sedan. Stoneham, who was still standing in Daviss driveway, mounted his bicycle and turned toward the street. Another car, described by other witnesses as a burgundy Toyota Camry, pulled up in front of the driveway; and a man shot a handgun at Stoneham through an open passenger-side window of the car. One of the shots grazed Stonehams head, and he fell off the bicycle onto the ground. Stoneham got up to run but fell again. Unable to get up a second time, he looked over his shoulder to see the shooter get out of the car with a rifle he then used to shoot repeatedly at Stoneham. Stoneham was hit 11 times but remained conscious throughout the attack.

Keiun Harris, the driver of the gray Caprice, testified the shooter, a black male, jumped back into the Camry, which sped off and rounded the corner. Harris put his car in reverse and chased the Camry around the corner. Davis, who had just walked across the street to Harriss car, followed on foot. Harris quit chasing the Camry when he saw it head toward the territory of a neighboring gang, the Hoover Street gang.

Shondera Wilson, who was visiting the home of her grandfather and aunt near Daviss residence, testified she heard the shots and walked down the street to find Stoneham lying behind a parked van.[1] She knelt next to Stoneham and talked to him while waiting for the police and paramedics to arrive. Stoneham was still conscious when the paramedics arrived. Although he denied it at trial, Stoneham admitted to one of the paramedics he had smoked crack earlier in the day.

Two days after the shooting Los Angeles Police Detective Patrick Flaherty visited Stoneham in the hospital and interviewed him about the incident. Stoneham told Flaherty he had recognized the shooter as Little Dizzy of the 87th Street Gangster Crips, someone Stoneham had seen hanging out with other gang members when he was buying crack. Based on Stonehams identification, Flaherty prepared a six-pack photographic lineup that included a photograph of Smith, an 87th Street gang member who Flaherty knew used the moniker Little Dizzy. Flaherty showed the photographs to Stoneham in the hospital two days later, and Stoneham identified Smith as the shooter. He told Flaherty, as he had in the initial interview, he did not know why Smith had shot him. However, Stoneham speculated one of the gang members may have thought he was a snitch or Keith Sparks, a gang member known as Cocaine, might be angry with him for having smoked crack with Sparkss mother.[2]

Detective Flaherty arrested Smith the following month at a location Stoneham had described as one of Little Dizzys hangouts. When first asked where he was the day of the shooting, Smith claimed he had been in jail. After Flaherty confirmed Smith had not been in jail, Smith admitted he had been at the scene of the shooting and had watched Stoneham being loaded into the ambulance, but denied shooting Stoneham.

At the preliminary hearing Stoneham again identified Smith as the shooter. A month or so before trial, Sparks stopped Stoneham at a local park and told Stoneham he wanted him to tell Smiths defense counsel Smith did not shoot him. Sparks dialed a number on his cellular telephone and handed the telephone to Stoneham. An investigator working on Smiths defense answered, and Stoneham told him Smith had not shot him. The investigator offered to come to Stonehams home to take a statement, but Stoneham failed to meet with the investigator. A few days later Stoneham was contacted by another 87th Street gang member known as Bogart, who drove Stoneham to the Compton courthouse to meet with the investigator. There, Stoneham signed a statement attesting to Smiths innocence and claiming he had confused Smith with a Hoover Street gang member known as D-Money. Stoneham also told Bogart he had decided not to appear at the trial in the hope this would result in Smiths release and convince the gang to leave him alone. Notwithstanding this assurance, Bogart picked Stoneham up the night before the scheduled trial date and kept Stoneham at his house until late the next day. Several days later, Stoneham was arrested on charges of drug possession, incarcerated and transported to court to testify.

The identity of the shooter was the principal issue at trial. On direct examination Stoneham firmly identified Smith as the man who shot him. On cross examination he wavered. Expressing confusion at his recollection of Davis chasing the shooters car, he stated, Because if it was them [87th Street gang members] meaning actually trying to shoot me, then why are they going to run after them like they did? [] Why would he do that? . . . I mean, then honestly ‑‑ honestly then I felt that [Smith] did, you know ‑‑ I felt he did it. Honestly, I did, you know. Stoneham then turned to Smith and spoke directly to him:

And it took me ‑‑ and still it has taken me some time ‑‑ some time to really, you know, things for me to get things together, you know, to see that you didnt do it. [] And Im being real. Like, this is you and me and nobody else to be here. Nobody but me and you and telling you straight up right now from the days, brother, Im still in the mix. Im going to be honest with you straight up. I knew it was you before I even hit the ground. I knew it was you.

Moments later, however, Stoneham and Smiths defense counsel engaged in the following exchange:

[Stoneham]: I dont want to send nobody to jail that is innocent, man, I dont. I really dont. [] . . . [] I dont want to send nobody to jail. Been in jail too long. And I dont want to send somebody to jail that is innocent. And now I dont think he did it. I really dont. I dont think he did it.

[Defense counsel]: Youre saying, as you sit here right now, you dont think Alberto Smith shot you?

[Stoneham]: No, I dont. . . . But at that point, I just knew it was you. At that point, I just knew it was Alberto who shot me right then and there.

[Defense counsel]: How about now as you sit here today?

[Stoneham]: No.

[Defense counsel]: No, you dont think it was him?

[Stoneham]: No. Saying straight up, no.

Harris, the driver of the Caprice who had chased the shooter, testified he saw the shooters face and it was not Smith. Wilson, the young woman who comforted Stoneham after he had been shot, testified Stoneham had told her at that time he did not know who shot him. Wilson also testified Stoneham approached her in a park to thank her for helping him and told her he knew Smith, who is the father of Wilsons child, had not shot him. Wilson asked Stoneham to call Smiths lawyer. Wilsons aunt, Patricia King, testified she had served a plate of food to Smith at her house just before she heard shots, but admitted she had not seen him after giving him the plate of food on her porch. Neither Smith nor Davis, who was standing next to Harriss car when the shooting took place, testified.

Los Angeles Police Officer John Jamison, a veteran officer who has been a member of the Southeast Division gang enforcement detail for three years, testified as an expert for the People on the gang enhancement allegation. Jamison identified Smith, Davis, Sparks, Popeye and Bogart as members of the 87th Street Gangster Crips[3]and described in detail how street gangs use intimidation to control their home turf and sell drugs to fund their operations. Jamison testified in his opinion the shooting of Stoneham was committed for the benefit of the 87th Street Gangster Crips: [I]t does benefit the 87 Gangster Crips by showing again what happens to people who disrespect the gang or do something that the gang doesnt approve of. This allows . . . more narcotic sales to continue in the neighborhood.

During its deliberations the jury asked the court to read the portion of Stonehams testimony in which he directly addressed Smith. After less than an hour of additional deliberation following the reading of that testimony, the jury returned a verdict of guilty on the charge of attempted murder and true findings on the gun use and gang enhancements.

Smith was sentenced to an aggregate state prison term of 25 years to life: life with the possibility of parole for attempted willful, deliberate and premeditated murder (Pen. Code, 664, subd. (a)), plus 25 years to life for personally and intentionally discharging a firearm causing great bodily injury (Pen. Code, 12022.53, subd. (d)). Because of the 25-years-to-life firearm enhancement, the gang enhancement has no practical impact on Smiths sentence. (See Pen. Code, 186.22, subd. (b)(5); People v. Lopez (2005) 34 Cal.4th 1002.)

CONTENTIONS

Smith contends Stonehams testimony was so inherently contradictory it was legally insufficient to support the jurys verdict. He also contends the evidence was insufficient to support the jurys true finding on the gang enhancement and the trial court abused its discretion in failing sua sponte to bifurcate trial of the gang allegation. Finally, he contends use of two of the pattern jury instructions adopted by the California Judicial Council (CALCRIM Nos. 220 and 224 (2006)) violated his right to due process of law.

DISCUSSION

1.      Substantial Evidence Supports Smiths Conviction for Attempted Murder

In reviewing a claim of insufficient evidence in a criminal case, we determine whether, on the entire record viewed in the light most favorable to the People, any rational trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; see also People v. Holt (1997) 15 Cal.4th 619, 667.) In making this assessment the court looks to the whole record, not just the evidence favorable to the [defendant] to determine if the evidence supporting the verdict is substantial in light of other facts. (Holt, at p. 667.)

Substantial evidence in this context means evidence which is reasonable, credible, and of solid value ‑‑ such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578; accord, People v. Hill (1998) 17 Cal.4th 800, 848-849 [When the sufficiency of the evidence is challenged on appeal, the court must review the whole record in the light most favorable to the judgment to determine whether it contains substantial evidence ‑‑ i.e., evidence that is credible and of solid value ‑‑ from which a rational trier of fact could have found the defendant guilty beyond a reasonable doubt].) Although the jury is required to acquit a criminal defendant if it finds the evidence susceptible of two reasonable interpretations, one of which favors guilt and the other innocence, it is the jury, not the appellate court, which must be convinced of his guilt beyond a reasonable doubt. (People v. Millwee (1998) 18 Cal.4th 96, 132.)

Although Stonehams testimony was not only inconsistent with the testimony of other witnesses but also internally inconsistent in major respects, we are not allowed to second-guess the jurys credibility determination. A witnesss testimony may be rejected on appeal only when it is physically impossible or inherently improbable. (People v. Mayberry (1975) 15 Cal.3d 143, 150; Oldham v. Kizer (1991) 235 Cal.App.3d 1046, 1065.) To be inherently improbable, the evidence must assert that something has occurred that it does not seem possible could have occurred under the circumstances disclosed. (Mayberry, at p. 150; People v. Headlee (1941) 18 Cal.2d 266, 267.) Stonehams testimony does not come close to satisfying this standard. Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. (People v. Lewis (2001) 26 Cal.4th 334, 361; see also People v. Kraft (2000) 23 Cal.4th 978, 1053-1054 [if substantial evidence supports the verdict, the fact the record could reasonably be interpreted to support a contrary finding will not warrant reversal]; People v. Watts (1999) 76 Cal.App.4th 1250, 1258-1259 [It is blackletter law that any conflict or contradiction in the evidence, or any inconsistency in the testimony of witnesses must be resolved by the trier of fact who is the sole judge of the credibility of the witnesses].)

If anything, the jurys conduct in this case reminds us of the wisdom of this rule. After initially deliberating, the jury requested the reading of Stonehams statement directly to Smith. Less than an hour later, it reached its verdict. Plainly, whatever doubts members of the jury held at the close of trial were resolved by that testimony. The evidence is sufficient to support Smiths conviction.

2.      Substantial Evidence Supports the Jurys True Findings on the Criminal Street Gang Enhancements

To obtain a true finding on an allegation of a criminal street gang enhancement, the People must prove the crime at issue was committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members . . . . ( 186.22, subd. (b)(1).) Smith contends the evidence was insufficient to satisfy that standard and, therefore, the true finding must be reversed.

Once again our review is limited by the principles mandating deference to the trier of fact. It was the province of the jury to determine whether, in light of the testimony of the witnesses at trial, Smith shot Stoneham to benefit the 87th Street Gangster Crips. There was ample evidence to support the jurys conclusion. Smith, as well as Sparks, Davis, Popeye and Bogart, were identified as members of the gang. Although Officer Jamison acknowledged not all crimes by gang members are committed to benefit the gang, the shooting took place at a location from which the gang routinely sold drugs; and Stoneham, a known addict who regularly bought crack from the gang, testified Popeye had once accused him of being a snitch. From this evidence a reasonable fact finder could have concluded beyond a reasonable doubt the shooting was committed to benefit the gang.

Smiths argument to the contrary notwithstanding, most of Officer Jamisons expert testimony regarding the culture and habits of criminal street gangs fell well within the boundaries outlined by the Supreme Court in People v. Gardeley (1996) 14 Cal.4th 605, 617, and People v. Williams (1997) 16 Cal.4th 153, 156, and their progeny. In Gardeley the Court upheld an experts testimony that the details of an assault conveyed a classic example of gang-related activity to frighten residents of an area where the gang members sell drugs, finding the jury could reasonably conclude that the attack on [the victim] by [gang members] was committed for the benefit of, at the direction of, or in association with that gang, and with the specific intent to promote, further, or assist in . . . criminal conduct by gang members as specified in the STEP Act. (Gardeley, at p. 619.)

Certain aspects of the gang expert testimony elicited in this case, however, were improper. In People v. Killebrew (2002) 103 Cal.App.4th 644 (Killebrew) the court rejected a gang experts opinion that, when one gang member in a car possesses a gun, every other gang member in the car knows of the gun and will constructively possess the gun. (Id. at p. 652.) As the court explained, a gang experts opinion may address the ultimate issue in the case, but it is improper for an expert to opine on whether a specific individual had specific knowledge or possessed a specific intent. (Id. at p. 658.) Because the experts testimony provided the only evidence to establish the elements of the crime (id. at p. 659), it did nothing more than inform the jury how [the expert] believed the case should be decided. (Id. at p. 658; accord, In re Frank S. (2006) 141 Cal.App.4th 1192, 1197-1198 [Similar to Killebrew, the expert in this case testified to subjective knowledge and intent of the minor. [Citation.] Such testimony is much different from the expectations of gang members in general when confronted with a specific action].)

Several of the questions posed by the prosecutor to Officer Jamison in this case crossed the line identified in Killebrew: In the guise of hypothetical questions Jamison was essentially asked if he believed Smith intended to shoot Stoneham to promote or benefit the 87th Street Gangster Crips.[4] The hypotheticals used the names of the defendant and the victim, the name of the defendants gang and multiple specific details of the crime (location, date, time of day, kind of firearms, the distance between the shooter and the victim, the number and location of the wounds, etc.). Obviously, there is a difference between testifying about specific persons and about hypothetical persons. (People v. Gonzalez (2006) 38 Cal.4th 932, 946, fn. 3.)

Although this series of questions was plainly improper, as discussed, there was ample, admissible evidence to support both the true finding on the gang enhancement and the underlying conviction. Jamisons improper testimony ‑‑ disturbing as it may be ‑‑ was not so prejudicial it is reasonably probable Smith would have received a more favorable result had these questions not been asked. (See People v. Watson (1956) 46 Cal.2d 818, 836.) Even if Jamisons responses to these questions had been entirely excluded, there was more than sufficient other evidence from which the jury could reasonably conclude the crimes were committed for the benefit of the 87th Street Gangster Crips. (Cf. In re Frank S., supra, 141 Cal.App.4th at p. 1199.)

3.      The Trial Court Did Not Err by Failing Sua Sponte To Bifurcate Trial of the Gang Enhancement Allegation

Bifurcation of the trial of a gang enhancement allegation is permitted, but the decision to bifurcate lies within the discretion of the trial court. (People v. Hernandez (2004) 33 Cal.4th 1040, 1049-1050.) As the Supreme Court observed in Hernandez, gang evidence often is relevant to establish motive, identity, modus operandi or specific intent. (Id. at p. 1049.) Bifurcation is required only when other evidence of the predicate acts required to establish the gang enhancement is unduly prejudicial or when gang evidence relating to the defendant is so extraordinarily prejudicial, and of so little relevance of guilt, that it threatens to sway the jury to convict regardless of the defendants actual guilt. (Ibid.)

Smith contends the trial court should have bifurcated trial of the gang enhancement allegation sua sponte because the gang evidence was completely unrelated to the question of his guilt for the attempted murder of Stoneham. He argues a reasonable probability exists he would not have been convicted, given Stonehams contradictory statements regarding the identity of the shooter, had the prejudicial evidence related to the gang allegation been excluded from the trial of his guilt.

There was no error. Although Stonehams identification of Smith as the shooter was undoubtedly central to the jurys verdict, much of the gang evidence was relevant to the charged offense and would have been admissible regarding Smiths motive and intent in shooting Stoneham even if there had been no gang allegation. The case was tried on the theory Stonehams shooting was intended as punishment for informing on gang activities or otherwise angering senior members of the gang hierarchy. Smiths admitted gang membership, his tattoos, his association with Davis and Sparks, and even their conduct after his arrest in trying to dissuade Stoneham from testifying became relevant to the issue of his identification. Indeed, Smith defended the case on the theory he was mistaken for a member of the rival Hoover Street gang. Under these circumstances the evidence was relevant to the question of Smiths guilt and not unduly prejudicial.

Moreover, any potential for undue prejudice was mitigated by the trial courts limiting instruction, given at the request of defense counsel: You may consider evidence of gang activity only for the limited purpose of deciding whether the defendant acted with the intent, purpose, and knowledge [that] are required to prove the gang related crimes and enhancements charged or the defendant had a motive to commit the crimes charged. You may also consider the evidence when you evaluate the credibility or believability of a witness and when you consider the facts and information brought on by an expert witness in reaching his or her opinion. You may not consider this evidence for any other purpose. You may not conclude from this evidence that the defendant is a person of bad character or that he has a disposition to commit crime. We, of course, must presume the jury understood and followed this limiting instruction. (People v. Yeomans (2003) 31 Cal.4th 93, 139 [we and others have described the presumption that jurors understand and follow instructions as [t]he crucial assumption underlying our constitutional system of trial by jury].) The court also excluded some of the more inflammatory gang evidence pursuant to Evidence Code section 352. We find no abuse of discretion in the courts decision not to bifurcate trial of the gang enhancement allegation.

4.      Smiths Due Process Rights Were Not Violated by Use of the Approved CALCRIM Jury Instructions

Smith argues the trial courts use of two of the recently adopted Judicial Council pattern jury instructions ‑‑ CALCRIM Nos. 220 and 224 ‑‑ violated his due process right to a fair trial.[5]

a.       CALCRIM No. 220

As given in this case, CALCRIM No. 220 provides: The fact that a criminal charge has been filed against the defendant is not evidence that the charge is true. You must not be biased against the defendant just because he has been arrested, charged with a crime or brought to trial. [] A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove each element of a crime and special allegation beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt unless I specifically tell you otherwise. [] Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt. [] In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidencethat was received throughout the trial, the entire trial. Unless the evidence proves [] the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal, and you must find him not guilty. (Italics added.)[6]

As Smith correctly observes, reasonable doubt may well grow out of the lack of evidence in the case as well as the evidence advanced. (People v. Simpson (1954) 43 Cal.2d 553, 556.) Smith contends the compare-and-consider language adopted by the Judicial Council in CALCRIM No. 220 precludes the jury from properly considering the lack of evidence of his guilt. In doing so, Smith argues, CALCRIM No. 220 violated his right to be convicted only upon proof beyond a reasonable doubt.

Two recent Court of Appeal decisions have rejected this identical argument. (People v. Westbrooks (2007) 151 Cal.App.4th 1500 (Westbrooks); People v. Ros (2007) 151 Cal.App.4th 1154 (Ros.) As our colleagues in Division One of the Fourth District pointed out in Westbrooks, there is no standard formula for instructing a jury on the meaning of reasonable doubt; so long as the court instructs the jury on the necessity that the defendants guilt be proved beyond a reasonable doubt, [citation], the Constitution does not require that any particular form of words be used in advising the jury of the governments burden of proof. [Citation.] Rather, taken as a whole, the instructions [must] correctly conve[y] the concept of reasonable doubt to the jury. [Citation.] (Westbrooks, 151 Cal.App.4th at p. 1508; see People v. Mayo (2006) 140 Cal.App.4th 535, 542.)

The jury in this case, like the jury in Westbrooks, was properly informed of the meaning of reasonable doubt and the scope of the evidence they could consider in reaching a verdict. In addition to CALCRIM No. 220, the trial court instructed the jury pursuant to CALCRIM No. 222, which prescribes in part: You must decide what the facts are in this case. You must use only the evidence that was presented in this courtroom . . . the sworn testimony of witnesses, the exhibits admitted into evidence, and anything else I told you to consider as evidence . . . . The court also instructed the jury that the People have the burden of proving beyond a reasonable doubt that it was the defendant who committed the crime (CALCRIM No. 315) and Smith could rely on the state of the evidence and argue that the People have failed to prove the charges beyond a reasonable doubt (CALCRIM No. 355). The Westbrooks court concluded these instructions, given in conjunction with CALCRIM No. 220, were ample to safeguard a defendants due process right to be convicted only upon proof beyond a reasonable doubt. (Westbrooks, supra, at p. 1510.) We fully agree with the analysis and conclusion in Westbrooks. (Accord, Ros, supra, 151 Cal.App.4th at p. 1157 [CALCRIM No. 220 uses verbs requiring the jury compare and consider all the evidence that was received throughout the entire trial, while CALJIC No. 2.90 uses nouns requiring the entirecomparison and consideration of all the evidence by the jury . . . those grammatical differences are [im]material].)

b.      CALCRIM No. 224

As given in this case, CALCRIM No. 224 provides: Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt. [] Also, before you may rely on circumstantial evidence to find the defendant guilty, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant is guilty. If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions points to innocence and another to guilt, you must accept the one that points to innocence. However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable.

Smith contends this instruction impermissibly phrases the jurys evaluation of the conclusions to be drawn from the circumstantial evidence in terms of him being guilty or innocent, rather than guilty or not guilty, thereby improperly requiring him to prove his innocence. To support his argument, Smith relies on People v. Han (2000) 78 Cal.App.4th 797, in which the Court of Appeal criticized similar language in CALJIC No. 2.01, the predecessor to CALCRIM No. 224, based on the semantic difference between the term innocence and the phrase lack of finding of guilt. The Han court found any potential error to be harmless in the context of the other instructions (specifically including the instruction on reasonable doubt) given in that trial. (Han, at p. 809.)[7] Similarly, even if we were to agree with the Han courts analysis, any error in this case would be harmless in light of the other instructions, including CALCRIM No. 220, that fully explained the Peoples burden of proof. Moreover, we agree with the recent observation of the Third District in People v. Anderson (2007) 152 Cal.App.4th 919, 931, which suggests the Han courts concern about the use of the term innocence in the circumstantial evidence instruction was overstated: [T]he obvious purpose of the instruction is to limit the use of circumstantial evidence in establishing [] proof [beyond a reasonable doubt]. CALCRIM No. 224 cautions the jury not to rely on circumstantial evidence to find the defendant guilty unless the only reasonable conclusion to be drawn from it points to the defendants guilt. In other words, in determining whether a fact necessary for conviction has been proved beyond a reasonable doubt, circumstantial evidence may be relied on only if the only reasonable inference that may be drawn from it points to the defendants guilt. (Ibid.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

PERLUSS, P. J.

We concur:

WOODS, J.

ZELON, J.

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Analysis and review provided by El Cajon Property line Lawyers.

[1] Smith is the father of Wilsons child. The mother of Harriss child, Diamond Hill, is Wilsons cousin. According to Harris, he and Smith frequently visited their families at the home of Wilson and Hills grandfather, which like Daviss residence is located on East 87th Street in Compton, part of the territory of the East 87th Street gang. Although the testimony at trial is somewhat uncertain, it appears the home Davis walked to after being initially approached by Stoneham is the grandfathers home, where, according to Wilsons aunt, Smith had lunch immediately before the shooting.

[2] At trial Stoneham testified an 87th Street Gangster Crip known as Popeye had once accused him of being a snitch but not in the presence of Sparks or Smith. Stoneham also testified Sparks knew Stoneham had smoked crack with Sparkss mother, but did not indicate Sparks was angry with him for doing so.

[3] Although there was no evidence Harris was also a gang member, Jamison testified he had seen him frequently in the company of 87th Street gang members, including Smith and Davis.

[4] In one instance the prosecutor asked Jamison how a gang member would deal with the situation posed by the following assumptions: (1) a person named David Stoneham regularly uses drugs; (2) Mr. Stoneham uses drugs with the mother of a member of an 87 Street Gangster Crip named Cocaine; and (3) Cocaine is not happy with the fact that his mother is using drugs. The expert responded somebody as influential as Cocaine is in the gang (a fact not posed by the hypothetical) could have any number of people in the gang . . . do any sorts of things to the person that he felt disrespected by. He doesnt want his mother using cocaine and another smoker is abusing cocaine with his mother and if he doesnt like that, he could have a younger gang member beat him up, put him in the hospital, shoot him, or kill him.

In another instance the prosecutor asked the expert to assume the following facts: On September 18th, 2005, David Stoneham, a drug user, went to a known gang hangout and place where narcotics are regularly sold; [t]he individual who regularly sells the drugs would be a major shot-caller in the 87 Gangster Crips, Cocaine, also known as Keith Sparks; Mr. Stoneham was transacting with another 87 Gangster Crip known as Night Owl [Davis]; Mr. Stoneham was unsuccessful in attempting to purchase narcotics . . . and began to ride his bicycle away from the location; a car drove up almost parallel to Mr. Stoneham on his bicycle and an 87 Street Gangster Crip named Alberto Smith, also known by the gang moniker Little Dizzy, reached his arm parallel out the window, pointed a handgun, and hit David Stoneham on the left side of his head with a bullet grazing his head causing him to fall to the ground while Mr. Stoneham was on his belly crawling away from the shots that were being fired at him by Little Dizzy; Little Dizzy went to the car that was stopped parallel in the street approximately 4 to 6 feet away from Mr. Stoneham who had already been shot in the head; Little Dizzy retrieved a rifle from the vehicle, walked over to where Mr. Stoneham was lying on the ground, and shot Mr. Stoneham numerous times, hitting him five times in the back, three times in the left leg near the groin area, one time in the left arm; and, finally, Little Dizzy, Alberto Smith, then left the location, left Mr. Stoneham on the street to die with 11 gunshot wounds to his body. She then asked, Do you have an opinion as to whether or not this conduct described has a benefit to the 87 Gangster Crips?

[5] Although Smith failed to object to the use of the instructions he now challenges on appeal, he has not forfeited his argument the instructions either misstated the law or adversely affected his substantial rights. (Pen. Code, 1259 [appellate court may also review any instruction given . . . even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby]; People v. Smithey (1999) 20 Cal.4th 936, 976, fn. 7 [defendant did not waive right to object to instruction alleged to be incorrect statement of law and given in violation of due process]; People v. Van Winkle (1999) 75 Cal.App.4th 133, 139-140 [defendants challenge to constitutionality of jury instructions not waived for failure to object because the constitutional right to have all elements of a criminal offense proved beyond a reasonable doubt is substantial].)

[6] CALJIC No. 2.90, which CALCRIM No. 220 replaced, imparts essentially the same mandate to the jury: A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether [his] [her] guilt is satisfactorily shown, [he] [she] is entitled to a verdict of not guilty. This presumption places upon the People the burden of proving [him] [her] guilty beyond a reasonable doubt. [] Reasonable doubt is defined as follows: It is not a mere possible doubt; because everything relating to human affairs is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge. (Italics added.)

[7] The Han court labeled the problem a minor anomaly and stated the language is inapt and potentially misleading in this respect standing alone. (People v. Han, supra, 78 Cal.App.4th at p. 809.)