P. v. Xiong

File 10/26/06 P. v. Xiong CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

THIRD APPELLATE DISTRICT

(Sacramento)

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In December 2000, defendant Tong Xiong and two codefendants were charged by amended information with murder (Pen. Code, § 187, subd. (a)--count one),^[1] discharging a firearm at an inhabited dwelling (§ 246--count two), discharging a firearm from a motor vehicle at a person not in the vehicle (§ 12034, subd. (c)--count three) and discharging a firearm from a motor vehicle (§ 12034, subd. (d)--count four), as well as several firearm enhancements (§§ 12022, subd. (a)(1), 12022.53, subds. (b), (c), (d) & (e)(1)), a criminal street gang enhancement (§ 182.22, subd. (b)(1)) and a special circumstance under section 190.2, subdivision (a)(21) (intentional first degree murder perpetrated by discharging a firearm from a motor vehicle).^[2] The jury in defendant’s matter was unable to reach a verdict, and a mistrial was declared.

Defendant was retried in May 2004.^[3] The jury found defendant guilty of second degree murder and the remaining counts. The jury also found true that defendant was a principal in an offense in which a firearm was used (§ 12022.53, subds. (b), (c), (d) & (e)(1)) and that he committed the offenses for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). The jury found the enhancement for personal use of a firearm not true. (§ 12022.53, subd. (d).) Defendant was sentenced to an indeterminate term in state prison of 40 years to life, consisting of 15 years to life on count one with a consecutive term of 25 years to life for the firearm use enhancement. Sentences on the remaining counts and enhancements were stayed pursuant to section 654.

Defendant appeals, claiming insufficiency of evidence of the gang enhancement, evidentiary and instructional errors, ineffective assistance of counsel and jury misconduct. For the reasons stated herein, we shall reverse the findings on the criminal street gang enhancement and the firearm enhancement. In all other respects, we shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On December 9, 1998, Yeng Lee (Yeng) was driving a car with his wife in the front passenger seat, Kou Lee (Kou) behind her in the back seat and defendant sitting behind Yeng. Defendant and Kou were members of the True Blue street gang (True Blue), and Yeng was a member of the Black Tigers, a gang closely allied with True Blue.

At one point as they were driving, Kou told Yeng to back up because he saw a person who had “jumped” him. Yeng stopped the car and backed up. Kou told Yeng’s wife to roll down her window and pull her seat forward, which she did. Jin Dao Lee (the victim), a member of a street gang called Junior Rascal Boys (JRB), was standing on the porch of the house where they had stopped.

Kou yelled “something about JRB” out of the window at the victim. While Kou was yelling, several gunshots were fired from the back seat of the car, fatally wounding the victim. Yeng’s wife believed defendant fired the shots because she saw his hand outside the window with a gun and Kou was still leaning out of the window.

The four drove off, heading to defendant’s residence. On the way, defendant and the codefendants laughed about the shooting. At some point, Kou made a reference to the fact that he had been jumped and received a scar. When they arrived at defendant’s residence, Yeng’s wife saw defendant reach into the sunroof when he was getting out of the car.

Two days after the shooting, a .22-caliber semiautomatic pistol containing defendant’s fingerprints was recovered from the garage at his residence. A criminalist concluded that spent cartridges recovered from the scene of the shooting had been fired from the recovered pistol.

During an interview with a police detective the following day, defendant’s brother, Fue, reported he encountered defendant and the codefendants at a cousin’s house later on the day of the incident and they told him that they “shot a kid” who had “messed with” Kou at his house earlier in the day. Fue told the detective that defendant said he shot the victim.

Fue told another officer that True Blue was formed in 1992, while the Black Tigers formed “in the late eighties,” with the Sacramento chapter organizing in 1996 after a soccer match resulted in a fight with another gang. Fue told the officer that the Black Tigers were “involved in burglaries and assaults.”^[4] He identified several other Black Tigers members. Fue reported that JRB, the gang with which the victim was affiliated, was an enemy of the Black Tigers.

Evidence was presented that two True Blue members committed a gang-related shooting at the same residence two weeks earlier and that the victim of that offense also was affiliated with JRB. There was also evidence that, sometime previously, defendant got into a fistfight with the JRB member at whose house the shooting occurred and that, when the rival gang member threatened defendant with a metal pipe, defendant left, saying he was going to get a gun to shoot him.

Based on a hypothetical question mirroring the facts of the current offense, a gang expert testified such shootings benefit a gang and promote gang activity due to fear and intimidation.

DISCUSSION

I. Sufficiency of Evidence of Gang’s Primary Activities

Defendant argues there was insufficient evidence to support the “primary activities” element of the gang enhancement. We agree.

To prove the existence of a criminal street gang for purposes of the gang enhancement statute, it must be established that one of the gang’s primary activities is the commission of one or more of 25 statutorily enumerated offenses. (§ 186.22, subd. (f).) “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 group’s ‘chief’ or ‘principal’ occupations. [Citation.] That definition would necessarily exclude the occasional commission of those crimes by the group’s members.” (People v. Sengpadychith (2001) 26 Cal.4th 316, 323 (Sengpadychith).)

“Sufficient proof of the gang’s primary activities might consist of evidence that the group’s members consistently and repeatedly have committed criminal activity listed in the gang statute.” (Sengpadychith, supra, 26 Cal.4th at p. 324.) A gang’s primary activities also may be established through expert testimony. (Id. at p. 322.) In making its determination, a jury may consider “prior conduct or acts committed at the time of the charged offenses.” (People v. Galvan (1998) 68 Cal.App.4th 1135, 1140; accord, Sengpadychith, at p. 323.) However, evidence of past or present criminal acts is not necessarily sufficient. (Sengpadychith, at p. 323.)

Turning to the facts in the present matter, there was scant evidence to establish that either True Blue or the Black Tigers had as one of its primary activities the commission of offenses enumerated in the gang statute. No expert testimony was offered at trial as to the primary activities of either gang. Without such testimony, it was necessary to present other evidence to establish that members of the alleged gangs “consistently and repeatedly” committed crimes enumerated in the statute. (Sengpadychith, supra, 26 Cal.4th at p. 324, italics omitted.)

With regard to True Blue, the only evidence of any specific offense falling within the statutory definition other than the current incident was the shooting by True Blue members that occurred two weeks earlier. Thus, there was evidence that members of True Blue, a gang that had been in existence since 1992, had been involved in two enumerated offenses in a two-week period.

In People v. Perez (2004) 118 Cal.App.4th 151, 160, the appellate court found insufficient evidence that a gang’s primary activities fell within the statutory definition where there was evidence of “retaliatory shootings of a few individuals over a period of less than a week, together with a beating six years earlier,” because such evidence failed to establish consistent and repeated criminal activity. Likewise, the commission by True Blue members of two offenses in a two-week period does not satisfy the “primary activity” requirement of the gang statute. As there was no expert testimony to supplement the evidence of specific crimes, the evidence was insufficient to support a finding that True Blue was a criminal street gang for purposes of the gang enhancement.

The same is true with regard to evidence of the Black Tigers’ activities. Again, no gang expert testimony was admitted regarding the Black Tigers’ activities. Other than the current offense, the only evidence regarding the criminal activities of this group consisted of a statement by defendant’s brother, Fue, testified to by a police officer, that the Black Tigers were “involved in burglaries and assaults.” However, Fue’s statement lacked any specificity concerning when or how many of such offenses were committed by Black Tigers’ members. Vague and unspecific statements such as this have been held insufficient to satisfy the “predicate offense” requirement of the gang statute. (In re Nathaniel C. (1991) 228 Cal.App.3d 990, 1003-1004.) We see no reason to deem such statements any more compelling when analyzing evidence of primary activities. Furthermore, the fact that a group is “involved” in certain activity does not establish it as the group’s primary activity absent additional evidence. Accordingly, Fue’s statement was insufficient to establish that the Black Tigers’ primary activities fell within the statutory definition.

Moreover, we note that one of the purported criminal activities of the Black Tigers--assaults--was not necessarily an enumerated offense for purposes of the gang enhancement. (See § 186.22, subd. (e).) For example, fistfights such as the one defendant was involved in with a rival gang member ordinarily would not qualify as an enumerated offense.^[5] Under similar circumstances, Division Three of the First Appellate District of the Court of Appeal held such evidence failed to establish the primary activities requirement of the gang enhancement, in part, because only one of the crimes listed by the expert as the gang’s primary activities was an enumerated offense under the gang statute. (In re Nathaniel C., supra, 228 Cal.App.3d at pp. 1004-1005.) Consequently, even if there had been admissible evidence that burglaries and assaults were the Black Tigers’ primary activities, and not just something they were “involved in,” we question whether such evidence would have been sufficient.

As there was insufficient evidence that one of the primary activities of either True Blue or Black Tigers was the commission of offenses enumerated in the gang statute, the true finding on the gang enhancement must be reversed. As a result, the enhancement for use of a firearm under section 12022.53 also must be reversed because when, as in defendant’s matter, the trier of fact determines a defendant did not personally use a firearm, the enhancement is applicable only if the defendant violated the gang enhancement statute.^[6] (§ 12022.53, subds. (d) & (e)(1).)

II. Evidentiary Issues

A. Codefendants’ Refusal to Testify

Defendant maintains the trial court erred by compelling Yeng (one of the codefendants in the first trial) to accept the prosecution’s offer of immunity and by ruling that Yeng’s refusal to testify could be presented to the jury.^[7] We disagree.

1. Background

At a pretrial hearing, Yeng was called as a witness to determine whether he would testify under a grant of immunity. Yeng refused to answer any questions, asserting his Fifth Amendment privilege against self-incrimination. Yeng’s attorney informed the court that Yeng’s appeal was still pending. The prosecutor stated he would offer immunity pursuant to section 1324, and the court declared it would accept the prosecution’s offer of immunity.^[8] Yeng continued to refuse to answer any questions.

The prosecutor argued that, following the grant of immunity, Yeng no longer retained a privilege against self-incrimination and that his refusal to testify should be presented to the jury. The prosecutor later explained it was his intent to argue to the jury that Yeng’s refusal to testify was evidence that gang members back each other up. The court ruled Yeng could be questioned in the presence of the jury.

Before Yeng was called to testify in the jury’s presence, defendant’s attorney questioned whether the court could compel Yeng to testify when he was refusing to accept the grant of immunity, noting also that a request for immunity must be in writing. After some discussion, the court stated it was “going to treat it as an informal offer of use immunity” (i.e., immunity from the use and derivative use of testimony) and would order Yeng to testify. The court also ruled that defense counsel would be permitted to ask Yeng questions, including the reasons why he was not testifying, because “it would be manifestly unfair that the only inference the jury will be allowed to draw will be a negative inference.”

2. Compelling testimony following grant of use immunity

Defendant claims “[a] convicted codefendant with a pending appeal cannot be immunized against his will as a means of compelling his testimony.” He is incorrect. A witness may not properly refuse to testify based on the privilege against self-incrimination if he or she has been conferred immunity that is “coextensive with the scope of the privilege.” (Kastigar v. United States (1972) 406 U.S. 441, 449 [32 L.Ed.2d 212, 219]; cf. People v. Seijas (2005) 36 Cal.4th 291, 305 [“[u]se of incriminating statements must be forbidden, as by a grant of immunity, and not merely unlikely, before the court may force a witness to make them”].) “[I]mmunity from use and derivative use is coextensive with the scope of the privilege against self-incrimination, and therefore is sufficient to compel testimony over a claim of the privilege.” (Kastigar, supra, at p. 453 [32 L.Ed.2d at p. 222]; see People v. Cooke (1993) 16 Cal.App.4th 1361, 1366 (Cooke).) Accordingly, once Yeng was offered use immunity, it was proper to compel him to testify, regardless of the fact that he had been convicted and his matter was pending on appeal.

Defendant also argues that the offer of use immunity did not satisfy the requirements of section 1324 and, therefore, the court could not compel Yeng to accept the offer of immunity. Defendant relies on People v. Superior Court (Perry) (1989) 213 Cal.App.3d 536 for this contention. In Perry, the prosecution unilaterally offered use immunity to a witness without seeking approval of the court. At the time, section 1324 required a grant of transactional immunity (immunity from prosecution) when a witness claiming a privilege against self-incrimination was compelled to testify. (See id. at p. 538, fn. 2.) The court in Perry concluded that an “offer [of] immunity outside section 1324 . . . is not enforceable until it has been accepted or relied upon.” (Id. at p. 540, italics omitted.)

Section 1324 was amended in 1996 to require that a witness with a valid privilege against self-incrimination need only be granted use immunity before being compelled by the court to testify. (Assem. Bill No. 988 (1995-1996 Reg. Sess.) 2 Stats. 1996, ch. 302, § 1, pp. 2266-2267; see Assem. Com. on Public Safety on Assem. Bill No. 988 (1995-1996 Reg. Sess.) as amended Jan. 4, 1996, p. 1.) Thus, contrary to defendant’s assertion, when Yeng was called to testify, an offer of transactional immunity was neither statutorily nor constitutionally required to compel his testimony. (See Cooke, supra, 16 Cal.App.4th at p. 1366 [transactional immunity not constitutionally mandated].) The grant of immunity offered Yeng was in compliance with section 1324. Accordingly, the trial court properly ordered Yeng to testify.

3. Presenting refusal to testify to the jury

Defendant argues the trial court erred by allowing the prosecutor to present Yeng’s refusal to testify to the jury. It is true that requiring a witness to assert a validly claimed privilege against self-incrimination in the presence of the jury is improper, because it allows the jury to draw “a speculative, factually unfounded inference.” (People v. Mincey (1992) 2 Cal.4th 408, 442.) However, when as here a witness does not have a valid privilege, the witness’s refusal to testify may be presented to the jury. (People v. Lopez (1999) 71 Cal.App.4th 1550, 1554 (Lopez); see People v. Chandler (1971) 17 Cal.App.3d 798, 803, disapproved of on another ground in People v. Hill (1992) 3 Cal.4th 959, 992.)

In Lopez, the prosecution sought to call as a witness the defendant’s fellow gang member, who already had pleaded guilty to charges related to the defendant’s case and whose time to appeal had expired. The witness indicated he would not testify against the defendant, even after being advised that he had no privilege against self-incrimination and that his refusal to testify would constitute contempt of court. The trial court permitted the prosecution to call the witness in the presence of the jury. Division Three of the Fourth Appellate District of the Court of Appeal held this was proper, concluding that when a witness has no legal right to refuse to testify, “[j]urors are entitled to draw a negative inference when such a witness refuses to provide relevant testimony.” (Lopez, supra, 71 Cal.App.4th at p. 1554.) The court concluded it was proper for the jury to consider the witness’s refusal to testify as support for the gang expert’s opinion “that gang members act as a unit to advance the cause of the gang and to protect their members.” (Id. at pp. 1555-1556.)

Yeng was in the same position as the witness in Lopez--once immunity under section 1324 was granted, he could no longer validly claim a privilege against self-incrimination and was unjustified in refusing to testify. The inference that the prosecution sought to have the jury draw from Yeng’s refusal to testify was that gang members back each other up--the same type of inference that the prosecutor in Lopez sought to illustrate by the witness’s refusal to testify. This was not improper.

Defendant suggests it was a violation of his right of confrontation to allow the jury to draw an inference that Yeng’s refusal to testify “signifie[d] that the witness would incriminate . . . defendant.” But after declining to answer any questions posed by the prosecutor, Yeng explained in response to a question by defense counsel that he was refusing to testify because he was in prison and was concerned about “being labeled as a snitch.” Thus, any confrontation clause argument that might be made regarding the propriety of allowing a jury to draw adverse inferences from a witness’s refusal to testify does not apply here, where defendant was able to cross-examine the witness about his reasons for refusing to testify.

Finally, defendant contests a ruling purportedly made by the trial court that Yeng and Kou would be considered “available” witnesses for confrontation clause purposes. Defendant’s citation to the record does not support that the trial court made such a ruling. Similarly, defendant contends that “the subsequent introduction of [the codefendants’] postarrest statements was a violation of [defendant’s] Sixth Amendment right of confrontation” despite the fact that neither codefendants’ statement was admitted at defendant’s trial. To the contrary, the trial court ruled that, based on confrontation clause considerations, such statements would not be admitted. Defendant’s claims in this regard are frivolous.

B. Evidence of Uncharged Conduct

Defendant claims the trial court erred by ruling that three prior uncharged acts were admissible. We conclude no error occurred.

“To be relevant, an uncharged offense must tend logically, naturally and by reasonable inference to prove the issue(s) on which it is offered.” (People v. Robbins (1988) 45 Cal.3d 867, 879.) Issues such as motive, intent, knowledge, planning and identity may be proved by way of such evidence. (Evid. Code, § 1101, subd. (b); People v. Ewoldt (1994) 7 Cal.4th 380, 402 & fn. 6 (Ewoldt).) The trial court may admit evidence of uncharged acts in its discretion after weighing the probative value against the prejudicial effect of such evidence. (People v. Daniels (1991) 52 Cal.3d 815, 856 (Daniels).) Consequently, a trial court’s ruling admitting prior instances of misconduct is reviewed for abuse of discretion. (People v. Cole (2004) 33 Cal.4th 1158, 1195.)

1. Prior shooting incident

The first incident defendant contends should not have been admitted was the shooting of an individual affiliated with JRB by True Blue members two weeks before the current offense. Defendant concedes this incident was relevant to the gang enhancement allegation but claims it “was totally unnecessary” to introduce testimony concerning the incident because records of convictions stemming from the offense were admitted into evidence. Defendant does not cite any authority for requiring the prosecution to select one method over another for presenting such evidence, and we decline to impose such a requirement.

Furthermore, defendant is incorrect that the evidence was irrelevant to any issue at trial other than the gang enhancement allegation. Testimony from the victim of the prior incident established he was affiliated with the same rival gang as the victim of the current offense, as was the individual at whose residence both shootings occurred. The fact that a shooting involving the same rival gangs occurred at the same residence just two weeks before the current offense was relevant because it illustrated the level of hostility between these gangs and helped to establish the motive for the current offense. Our Supreme Court has noted that evidence of a gang’s “criminal enterprises, rivalries, and the like--can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime.” (People v. Hernandez (2004) 33 Cal.4th 1040, 1049 (Hernandez).) The motive for a gang shooting, which often involves seemingly unprovoked acts of extreme violence, is highly relevant. We detect no abuse of discretion in admitting such evidence.

Defendant’s argument that the trial court should have bifurcated the trial on the gang enhancement fails for this reason as well. “To the extent the evidence supporting the gang enhancement would be admissible at a trial of guilt, any inference of prejudice would be dispelled, and bifurcation would not be necessary.” (Hernandez, supra, 33 Cal.4th at pp. 1049-1050.) Furthermore, as our Supreme Court has explained: “A gang enhancement is different from [a] prior conviction . . . . A prior conviction allegation relates to the defendant’s status and may have no connection to the charged offense; by contrast, the criminal street gang enhancement is attached to the charged offense and is, by definition, inextricably intertwined with that offense. So less need for bifurcation generally exists with the gang enhancement than with a prior conviction allegation.” (Id. at p. 1048.)

Similarly, here, much of the evidence supporting the gang enhancement was also relevant to prove the underlying offenses. The trial court acted well within its discretion in declining to bifurcate trial on this issue.

2. Fistfight

Next, defendant claims it was error to admit evidence that he previously got into a fistfight with the JRB member at whose house the current offense occurred and that he threatened to get a gun to shoot him. Defendant maintains the prior incident was too dissimilar to the current offense to merit its admission.

Defendant relies on Ewoldt to support his claim. However, in that case, the Supreme Court addressed the admissibility of uncharged acts on issues of intent, common plan and identity, concluding that the uncharged conduct must bear a level of similarity to the current offense to be admissible on those issues. (Ewoldt, supra, 7 Cal.4th at pp. 402-403.) Defendant is incorrect that a degree of similarity is required when a prior incident is being admitted to demonstrate motive. For example, in Daniels, supra, 52 Cal.3d at p. 856, the defendant was charged with murdering a police officer, and the appellate court concluded evidence was properly admitted that, following a previous bank robbery, the defendant was crippled as a result of an exchange of gunfire with police. The court noted there was “a direct relationship between the police rendering [the] defendant a paraplegic and [the] defendant murdering the officers in retribution” and that “[t]his [wa]s particularly true when coupled with other admitted evidence of [the] defendant’s antipathy toward the police.” (Id. at p. 857.)

Likewise, here, the fact that defendant had previously fought with the individual at whose house the shooting occurred and had threatened to get a gun and shoot him was relevant to establish defendant’s motive in the current offense. As in Daniels, this combined with other evidence of the hostility between the gangs involved, raised a compelling inference that defendant’s involvement in the current offense was as more than a mere bystander.

3. Handgun possession

Defendant urges that a prior incident in which he was found to be in possession of a handgun should not have been admitted. Although the trial court ruled this incident was admissible, it does not appear that evidence of the incident was introduced at trial. Thus, regardless of the propriety of the trial court’s ruling, defendant suffered no prejudice. Accordingly, we reject this claim.

III. Ineffective Assistance of Counsel

Defendant claims his trial attorney rendered ineffective assistance of counsel because he “elicited inadmissible, prejudicial evidence” from the gang expert. Again, we disagree.

On direct examination, the gang expert testified that part of “the code of conduct” of gang members is to back each other up if a confrontation occurs with a rival gang member. The expert explained that gang members have a “wolf-pack mentality” and agreed that gangs “often commit crimes in numbers.” The expert was given a hypothetical situation in which three gang members with “a street gang mentality” see a rival gang member while traveling in a car and one of the individuals shoots the rival. The expert testified that, in his opinion, an offense committed under these circumstances would benefit the gang and promote its criminal activity by enhancing the gang’s reputation and by preventing people from reporting crimes committed by the gang.

On cross-examination, defense counsel questioned the expert about his opinion that the shooting would have been committed to promote gang activity. The expert testified that, in the hypothetical situation, he assumed the individuals were “acting in concert,” however even if the shooting was a unilateral act by one of the gang members, the other gang members would be promoting gang activity by their presence in the car. The expert testified that gang members go out together to “have each other’s back” and that, whatever happens, they approve of each other’s actions. The expert insisted that the gang members would be promoting gang activity simply by being together, regardless of where they were going or the intent of each individual member. In an effort to clarify the expert’s testimony, defense counsel asked whether a gang member who had no knowledge or intent that a shooting would occur would be promoting gang activity by simply sitting in the car during the incident. The expert testified this would promote gang activity.

Defendant argues that the expert, here, rendered an improper opinion on defendant’s mental state. Defendant portrays the expert’s opinion to be that “gang members present in vehicles in groups are necessarily aiding and abetting each other in any criminal act performed by one occupant.” We believe defendant has mischaracterized the expert’s testimony.

Both on direct and cross-examination, the gang expert’s testimony focused on the hypothetical question of whether, by being present in a car during a shooting, gang members would be promoting gang activity, regardless of the intent or knowledge of each gang member. The expert also testified generally to the expectations of gang members when they are out together and when they encounter rival gang members. Gang expert testimony is admissible on a host of issues, including the motivation for a particular crime (such as retaliation) and whether a crime was committed to benefit the gang. (People v. Killebrew (2002) 103 Cal.App.4th 644, 656-657 (Killebrew) and cases cited therein; People v. Zepeda (2001) 87 Cal.App.4th 1183, 1208-1209; People v. Valdez (1997) 58 Cal.App.4th 494, 508-509.) Evidence of what “gang members typically expect” under a given set of circumstances is also an appropriate subject for expert testimony. (People v. Olguin (1994) 31 Cal.App.4th 1355, 1371.) Accordingly, the expert’s testimony on these subjects in the present matter was admissible.

To be sure, gang experts are not free to testify to any and all opinions they may have about gangs. (Killebrew, supra, 103 Cal.App.4th at p. 654.) And one area on which a gang expert may not offer an opinion is whether “a specific individual had specific knowledge or possessed a specific intent.” (Id. at p. 658.) However, contrary to defendant’s assertion, the gang expert did not testify to defendant’s subjective knowledge or intent with regard to the shooting, except to state that an individual with a “gang mentality” will approve of whatever conduct is undertaken by his fellow gang members. Such testimony does not constitute an opinion that the gang member would be aiding and abetting the shooting, because aiding and abetting requires knowledge of the unlawful purpose of the perpetrator and an intent to commit, encourage or facilitate the crime. (CALJIC No. 3.01; People v. Torres (1990) 224 Cal.App.3d 763, 769-770.)

As the expert did not offer an opinion on defendant’s mental state, defendant’s claim that his trial attorney rendered ineffective assistance of counsel must fail.

IV. Jury Misconduct

Defendant contends the trial court erred by allowing jurors to refuse to discuss their deliberations once defendant established good cause for the release of juror identifying information based on possible jury misconduct. He also maintains the trial court committed error by denying his motion for a new trial. As we shall explain, we do not agree.

A. Background

At trial, Fue repeatedly testified he did not remember or did not know the answer to questions regarding the offense and the gangs involved. He also testified he did not remember statements he made to police personnel shortly after the offense. After a videotape of Fue’s police interview was played for the jury, Fue acknowledged he told the detective that defendant said he shot someone, although Fue maintained defendant had not in fact said this. Fue could not explain why he reported this to the detective.

On cross-examination, Fue said he had been “knocked out” before and he sometimes had memory problems.^[9] He testified that he was easily confused. Fue said he did not remember various testimony he gave during his direct and cross-examination and did not remember reading the transcript of his police interview that morning during his testimony. Fue testified that he could not identify the President of the United States or the Governor of California.

According to defendant’s trial attorney, after the verdicts were reached, members of the jury reported they had observed Fue talking on a cell phone in the courthouse during a recess and “it was clear that [he] was smarter than he tried to appear in court, understood more than he was letting on in court and did not appear confused whatsoever.” Based on this information, defendant requested release of the jurors’ contact information. In response, the court stated it would send a notice to the jurors apprising them of defendant’s request and their right to be heard on the release of information as well as to specify the circumstances under which they would be willing to be contacted.

At the next hearing, the trial court reported that 10 jurors responded to the court’s inquiry but not all of these jurors were willing to discuss the matter. The court also stated jurors were informed that if they did not respond, they would be treated as if they did not want to be contacted. Defendant’s trial counsel had no objection to this procedure.

Subsequently, defendant filed a motion for a new trial based, in part, on jury misconduct stemming from jurors’ observations of Fue outside the courtroom. Attached to the motion were declarations from three jurors (Nos. 5, 9 and 10).

In Juror No. 5’s declaration, he stated that he had observed Fue outside the courtroom on numerous occasions. According to Juror No. 5, although Fue was “slow and confused” while testifying, he appeared “normal and focused” outside the courtroom. Juror No. 5 recalled there had been a brief reference during deliberations to Fue’s actions and demeanor outside the courtroom.

The declaration of Juror No. 9 stated that he saw Fue outside the courtroom using a cell phone on a few occasions and observed that Fue “was conversing not as a confused person” and that he “seemed to know what he was doing.” According to Juror No. 9, this contrasted with Fue’s behavior while testifying, which he described as “‘acting dumb.’” Juror No. 9 stated that some of the other jurors also felt that Fue “was pretending to be confused on the stand.” According to Juror No. 9, there was a discussion of Fue’s demeanor outside the courtroom while the jury was reviewing Fue’s statement to the police.

Juror No. 10’s declaration stated that he saw Fue outside the courtroom several times during breaks in the testimony, but he did not recall any discussion during deliberations contrasting Fue’s in-court and out-of-court behavior. This juror noted that the jury broke into smaller groups at various times during deliberations.

The People filed an opposition to defendant’s motion, attaching an additional statement from Juror No. 9. According to this statement, the jurors already had discussed that Fue was “acting dumb on the stand” and “couldn’t be considered dependable as a witness” when his behavior outside the courtroom came up. Several “jurors spoke up and [said that] they [too] had seen” Fue talking on the cell phone. Juror No. 9 stated that the jurors “didn’t waste that much time discussing” their observations of Fue outside the courtroom, maintaining that “it was just in passing.” According to Juror No. 9, the jurors read the instructions twice “so that [they] were clear as to what [they] had to do to reach [their] verdict.”

The trial court found jury misconduct occurred when the jurors discussed their out-of-court observations of Fue during deliberations. However, the trial court ruled “the extraneous information was not so prejudicial in and of itself as to cause inherent bias” and “there [wa]s not a substantial[] likelihood of actual bias . . . relative to any of the jurors.” The court noted that the cross-examination of Fue thoroughly undermined his credibility, noting that, in his videotaped interview (which was played for the jury), Fue “was clear on all the essential details,” whereas his testimony in court was so replete with memory lapses that it was “comical.” The court stated it was “swayed” by Juror No. 9’s statement to the prosecution that the jurors already had reached a determination regarding Fue’s credibility when the subject of Fue’s behavior outside the courtroom was discussed and that they did not spend much time discussing the matter. Accordingly, the trial court denied defendant’s motion for a new trial.

B. Posttrial Rights of Jurors

Defendant contends it was error for the trial court to inform the jurors they had the right to refuse to discuss what occurred during jury deliberations. Defendant is incorrect.

Initially, we note that defendant’s claim could be deemed forfeited by his failure to object in the trial court to the procedure outlined by that court. “‘[A] constitutional right may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right.’” (United States v. Cotton (2002) 535 U.S. 625, 634 [152 L.Ed.2d 860, 869]; People v. Barnum (2003) 29 Cal.4th 1210, 1224.) Even under circumstances in which a defendant is under no obligation to object to the trial court’s actions to preserve a claim, “affirmative conduct by the defendant may constitute a waiver if it clearly evidences consent.” (Curry v. Superior Court (1970) 2 Cal.3d 707, 713.) Here, defendant’s trial attorney expressly stated he had no objection to the trial court’s procedure of releasing the contact information only of jurors who agreed to discuss the deliberations.

In any event, defendant’s substantive claim is without merit. Code of Civil Procedure section 206, subdivision (a) provides that before discharging a jury the trial court must “inform the jurors that they have an absolute right to discuss or not to discuss the deliberation or verdict with anyone.” A juror need only talk to a party if he or she consents and, if a discussion is attempted more than 24 hours after the verdict, the party must advise the juror of his or her absolute right not to discuss the deliberations or verdict. (§ 206, subds. (b) & (c).)

Defendant maintains, however, that another provision of the Code of Civil Procedure--section 237--“contemplates that the court determine whether the juror’s protest should be sustained or denied based upon particularized facts.” Section 237 provides for the sealing of juror identifying information and sets forth the procedure for gaining access to such information. Anyone may petition for access to juror identifying information and, if there is a prima facie showing of good cause for disclosure, the trial court must set the matter for a hearing unless it finds a compelling interest against disclosure. (§ 237, subd. (b).) Jurors are entitled to receive notice of the hearing and may oppose the disclosure. (§ 237, subd. (c).) Section 237, subdivision (d), provides in part: “The court shall sustain the protest of the former juror if, in the discretion of the court, the petitioner fails to show good cause, the record establishes the presence of a compelling interest against disclosure as defined in subdivision (b), or the juror is unwilling to be contacted by the petitioner.”

In 1995, Code of Civil Procedure section 237 was amended to add the language in subdivision (d) regarding nondisclosure when a juror is unwilling to be contacted. (Sen. Bill No. 508 (1995-1996 Reg. Sess.) 4 Stats. 1995, ch. 964, § 3, pp. 7376-7377.) But even before the 1995 amendment, a juror’s right to not discuss deliberations was recognized as implicit in the provisions of Code of Civil Procedure sections 206 and 237. Thus, in Jones v. Superior Court (1994) 26 Cal.App.4th 1202, 1208-1209, the Court of Appeal, Fourth Appellate District, Division One, held: “[N]othing in section 237 requires the court to grant access to the defendant, counsel or anyone else in the face of a ‘compelling governmental interest.’ Harmonizing sections 237 with 206, we conclude a juror’s refusal to discuss the deliberations or verdict is a ‘compelling governmental interest’ sufficient to authorize the court to keep that juror’s address and telephone number sealed.” (Fn. omitted.)

As noted by the People, Code of Civil Procedure section 237 does not contain any requirement that a juror discuss a case against his or her will, regardless of whether a prima facie showing of good cause for release of juror information has been made. To the contrary, subdivision (d) permits nondisclosure of a juror’s identifying information if the juror is unwilling to be contacted. This is wholly consistent with Code of Civil Procedure section 206, which recognizes a juror’s absolute right not to discuss deliberations with anyone. (See also In re Hamilton (1999) 20 Cal.4th 273, 303, fn. 23.)

Defendant claims that “if jurors had a right to choose not to participate, then the statute would not require them to ‘appear . . . to protest the granting of the petition [for disclosure of juror information].’” However, the statute permits a juror’s appearance to be “in person, in writing, by telephone, or by counsel.” (Code Civ. Proc., § 237, subd. (c)).) Defendant does not suggest how else a juror might communicate to the court an objection to disclosure. We disagree with defendant that this language in any way “contemplates that the court determine whether the juror’s protest should be sustained or denied based upon particularized facts.”

Accordingly, the trial court did not commit error by informing the jurors they could refuse to discuss their deliberations.

C. Admissibility of Statements in Juror Declarations

Defendant claims the trial court erred by “disregard[ing] portions of the [juror] declarations reciting statements made by one juror to another.” He argues: “To the extent that the trial court disregarded statements outlined in the juror declarations in the erroneous belief that those statements were inadmissible for any purpose, it consequently ignored compelling evidence of the extent to which the misconduct spread through the jury.” Defendant fails to identify with any specificity which statements he contends the trial court should have, and did not, consider. Our review of the record discloses no basis to conclude the trial court failed to consider all admissible evidence on the issue.

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.”

In the present matter, the trial court properly ignored portions of the juror declarations that concerned the jurors’ thought processes. The court stated it considered the jurors’ statements regarding their observations of Fue outside the courtroom and that his demeanor contrasted with how he appeared while testifying. The court also stated that it considered the portion of the jurors’ declarations regarding their discussion during deliberations of Fue’s out-of-court demeanor. Contrary to defendant’s assertion, the court noted that Juror Nos. 5 and 9 both acknowledged that Fue’s behavior outside the courtroom was commented upon during deliberations.

The only statements the trial court indicated it would not consider were those that were reflective of the jurors’ mental processes during deliberations, which statements it was legally required to disregard. We perceive no error.

D. Juror Misconduct/Prejudice

Neither party challenges the trial court’s finding that misconduct occurred when, during deliberations, members of the jury discussed their observations of Fue outside the courtroom, and we agree as well with the trial court’s finding. Juror misconduct occurs when a juror receives evidence from a source other than the courtroom (§ 1181, subd. 2), even if the information is received inadvertently such as here (People v. Zapien (1993) 4 Cal.4th 929, 994). Defendant contends this misconduct was prejudicial. On this point, we diverge.

It is not the case that “the improper receipt of any potentially prejudicial information require[s] reversal.” (In re Carpenter (1995) 9 Cal.4th 634, 653 (Carpenter).) “Juror misconduct raises a rebuttable presumption of prejudice. The presumption may be rebutted by proof that prejudice did not actually result.” (People v. Mendoza (2000) 24 Cal.4th 130, 195.)

Prejudice is established if, objectively, the extraneous material was “inherently and substantially likely to have influenced the juror.” (Carpenter, supra, 9 Cal.4th at p. 653.) It can also be established by examining “the nature of the misconduct and the surrounding circumstances to determine whether it is substantially likely the juror was actually biased against the defendant.” (Ibid.)

“A trial court’s finding of prejudice is based, to a significant extent, on ‘”first-hand observations made in open court,”’ which that court itself is best positioned to interpret.” (People v. Ault (2004) 33 Cal.4th 1250, 1267.) Accordingly, “[w]e accept the trial court’s credibility determinations and findings on questions of historical fact if supported by substantial evidence. [Citations.] Whether prejudice arose from juror misconduct, however, is a mixed question of law and fact subject to an appellate court’s independent determination.” (People v. Nesler (1997) 16 Cal.4th 561, 582 (lead opn. of George, C. J.), cited with approval in Ault, supra, at pp. 1263, 1271-1272 [holding abuse of discretion standard of review applies when trial court grants new trial based on juror misconduct].)

Our review of the record, here, leads us to concur with the trial court’s determination that defendant suffered no prejudice from the misconduct in question, either objectively or based on actual juror bias.

We agree with the trial court that, objectively, the extraneous information was not likely to have influenced the jury. We accept the trial court’s observation that Fue was not a credible witness and that his memory lapses while testifying were “comical,” as the transcript of Fue’s testimony supports the trial court’s assessment. The court contrasted Fue’s demeanor in court with his videotaped interview, in which Fue was “clear on all the essential details.” Although the videotaped interview is not before this court,^[10] the transcript of that interview confirms that Fue had no difficulty with recall, in marked contrast to his responses to questions at trial. Thus, observations of Fue outside the courtroom during trial were merely cumulative of what the jury witnessed on the videotaped interview and were unlikely to have influenced the jury.

With regard to actual bias, we examine the entire record, including the trial record, and may consider “the nature of the juror’s conduct, the circumstances under which the information was obtained, the instructions the jury received, the nature of the evidence and issues at trial, and the strength of the evidence against the defendant.” (Carpenter, supra, 9 Cal.4th at p. 654.) We note the extraneous information, here, was obtained inadvertently in the normal course of the trial participants’ activities during trial. The jurors were instructed to decide questions of fact based on evidence received during trial and not from any other source and, according to Juror No. 9, the jurors read these instructions twice to be “clear as to what [they] had to do to reach [their] verdict.” Finally, we accept the trial court’s determination that the jurors already had assessed Fue’s credibility when a brief discussion ensued concerning his behavior outside the courtroom. These circumstances belie any claim of juror bias.

Defendant maintains that “Fue’s courtroom demeanor and memory deficit would have detracted from the reliability of his out-of-court statements implicating [defendant] in the shooting” if the jury had not received “extrajudicial evidence that Fue was feigning impairment during his testimony.” Yet, the jury’s verdicts--finding the enhancement not true that defendant personally used a firearm--reflect it discarded the most incriminatory of Fue’s out-of-court statements to the police detective: defendant’s admission that he shot the victim. Accordingly, defendant’s argument that the jury’s observations of Fue outside of court “bolstered the reliability of his incriminatory statements” is not borne out.

“[I]t is virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote. Due process means a jury capable and willing to decide the case solely on the evidence before it . . . .” (Smith v. Phillips (1982) 455 U.S. 209, 217 [71 L.Ed.2d 78, 86].) Defendant received as much here. We conclude defendant suffered no prejudice from the jury misconduct.

DISPOSITION

The criminal street gang enhancement (§ 186.22, subd. (b)(1)) and firearm use enhancements (§ 12022.53, subds. (b), (c), (d) & (e)(1)) are reversed. Defendant’s sentence is modified to strike the consecutive 25-year-to-life term for the

firearm use enhancements. In all other respects, the judgment is affirmed.

BUTZ , J.

We concur:

NICHOLSON , Acting P. J.

RAYE , J.

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^[1] Undesignated statutory references are to the Penal Code.

^[2] Handwritten notations on the amended information indicate that several other enhancements were struck.

^[3] The enhancement under section 12022, subdivision (a)(1), was not submitted to the jury on retrial.

^[4] Although the prosecutor started to ask the officer whether Fue said Black Tigers were involved in “shootings” and Vehicle Code section “10851’s” (stolen vehicles), he did not complete the question and did not receive a response.

^[5] The People argue the shooting that occurred two weeks before the current offense “demonstrated that Fue was . . . referring to assaults with a firearm,” when he reported that the Black Tigers were involved in assaults. As the shooting was committed by True Blue members, not members of the Black Tigers, this argument is unpersuasive.

^[6] As we conclude the true finding on the gang enhancement must be reversed, we need not reach defendant’s argument that the trial court erroneously instructed the jury concerning the gang enhancement.

^[7] Although both codefendants refused to answer any questions despite a grant of immunity, only Yeng was called to testify in the presence of the jury. Therefore, we have focused our analysis on him.

^[8] Section 1324 provides, in relevant part: “In any felony proceeding or in any investigation or proceeding before a grand jury for any felony offense if a person refuses to answer a question or produce evidence of any other kind on the ground that he or she may be incriminated thereby, and if the district attorney of the county or any other prosecuting agency in writing requests the court, in and for that county, to order that person to answer the question or produce the evidence, a judge shall set a time for hearing and order the person to appear before the court and show cause, if any, why the question should not be answered or the evidence produced, and the court shall order the question answered or the evidence produced unless it finds that to do so would be clearly contrary to the public interest, or could subject the witness to a criminal prosecution in another jurisdiction, and that person shall comply with the order. After complying, and if, but for this section, he or she would have been privileged to withhold the answer given or the evidence produced by him or her, no testimony or other information compelled under the order or any information directly or indirectly derived from the testimony or other information may be used against the witness in any criminal case.”

^[9] It is not clear from the evidence when the assaults leading to Fue’s asserted memory problems occurred.

^[10] The videotaped interview, which was an exhibit at trial, has not been designated by either party as part of the record on appeal. (Cal. Rules of Court, rule 18.)