P. v. Hunter

Filed 7/5/07 P. v. Hunter CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County. Michael M. Johnson, Judge. Affirmed.

________

Daniel G. Koryn, 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, Assistant Attorney General, Steven D. Matthews and G. Tracey Letteau, Deputy Attorneys General, for Plaintiff and Respondent.

_________

A jury convicted Edward Hunter of first-degree murder in which a principal discharged a firearm causing death (count 1) and premeditated attempted murder (count 2), both committed to benefit a gang and in both of which a principal discharged and used a firearm. (Pen. Code, 187, subd. (a), 189, 12022.53, subds. (d), (e); 664, subd. (a), 186.22, subd. (b)(1), 12022.53, subds. (b), (c), (e); all further undesignated section references are to the Penal Code.) The court sentenced Hunter to 50 years-to-life on count 1 (25 years-to-life for first-degree murder and a consecutive 25 years-to-life for the firearm and gang enhancements) and a concurrent term on count 2.

Hunter appeals, contending that (I) insufficient evidence supports his convictions under the prosecutions trial theory that he was not a perpetrator but was guilty as an aider and abettor; (II) the court erred in not instructing the jury sua sponte that an aider and abettor can be guilty of a lesser crime than the perpetrator; and (III) the court prejudicially erred in letting the prosecutions gang expert testify that Hunters defense that he did not know the perpetrators planned to shoot was very, very highly, highly unlikely.

We reject these contentions and affirm the judgment.

FACTS

Shortly before 6:00 p.m. on January 24, 2005, William Johnson (the murder victim) and his neighbor David Hampton (the attempted murder victim) were standing on Johnsons front porch. Neither victim was a gang member, but they knew that a local street gang (according to police, the Five Deuce Broadway Gangster Crips, hereafter the Broadway Crips) claimed their neighborhood as its territory.

A grey Chrysler drove slowly by and stopped a few houses down the street. Two men whom the victims did not know got out of the car and walked back toward Johnsons house. As they did so, the Chrysler turned around and slowly drove in the same direction; Hampton could not see how many people remained in the Chrysler. The two men passed Johnsons house, asked, Whats up, and continued walking to the corner. Johnson and Hampton were suspicious and concerned, and Hampton told Johnson to go inside. As Hampton stepped off the porch, he saw the two men walk back and fire two gunshots at them. Hampton ran into Johnsons backyard, heard more shots and screaming, and, after about a minute, returned to the porch, where he found Johnson lying wounded. The two men and the Chrysler were gone. Hampton described the two men and the Chrysler to police. Johnson died from a single gunshot wound to the chest, but the bullet passed through his body and was not recovered. Police found 12 expended nine-millimeter shell casings at the scene but never recovered a gun. Hampton never identified Hunter, and no forensic evidence linked Hunter to the crime.

Three days later, on January 27, 2005, after a short pursuit, police stopped the Chrysler. The driver escaped, but police caught the passenger, who was a member of the Six Deuce East Coast Crips (hereafter, East Coast Crips) street gang, a rival of the Broadway Crips who claimed control of the area where the shootings occurred. Inside the Chrysler, police found papers disclosing that it was rented to the mother of another East Coast Crip member.

Several days later, on February 9, 2005, an investigating detective spoke with informant Timothy Gaines, a former gang member who, for money and favorable treatment on a 2005 burglary charge, provided information about the gangs to law enforcement. Gaines knew Hunter and knew he was an active East Coast Crips member. Gaines also knew that the Broadway Crips and East Coast Crips were in the midst of a war in which they engaged in retaliatory shootings. A few days before the Johnson murder, Gaines saw Hunter carrying a handgun. A few days after the murder, Gaines encountered Hunter, who bragg[ed] that he and another East Coast Crip member known as Asmo just did a shooting . . . on the Broadways. Gaines also spoke with Asmo, who said he was the shooter in the Johnson murder. Based on Asmos statement, Gaines concluded that Hunter was not the shooter.

Over five months later, on June 17, 2005, police apprehended Hunter after a brief foot pursuit. Police interviewed Hunter, an admitted East Coast Crip member, three times. In the first interview, he denied being present at the Johnson murder. In the second interview, after initially denying knowing anything about the crimes, Hunter admitted that three armed fellow gang members picked him up in the Chrysler and drove to the crime scene. Hunter claimed, however, that he was unarmed, did not know a shooting was planned, and stayed in the car, which he said remained parked, while the other three men got out and fired shots, after which the shooters got back into the car and the group drove off. Hunter said he got out of the car a few blocks away. In the third interview, Hunter gave a similar account to his second interview, but now said that only two other gang members picked him up in the Chrysler, both of whom got out during the shooting. Hunter again claimed that the car remained parked during the shooting and that he did not know his companions intended to shoot anyone.

A police gang expert testified that Hunter was an admitted East Coast Crips member, the Broadway Crips and East Coast Crips were rivals, in January 2005 the two gangs were in the midst of a war in which they engaged in retaliatory shootings in each others territory, and participating in such shootings served the gangs purposes by enhancing their status and instilling fear among their rivals. As part of his testimony the expert opined that a hypothetical shooting similar to the murder and attempted murder in this case would further both the gangs and the participants purposes and prestige. Thereafter, this colloquy occurred: [The prosecutor:] Lets say also hypothetically, one of the people in the car has said, Well, I didnt know what they were doing, they just drove there and parked the car and I didnt know what was going on, whats your opinion about that? [] [Defense counsel]: . . . [T]hat would call for speculation, the state of mind of the declarant. [] Object on that ground. [] The Court: The objection is overruled, but youre not to speculate about the thoughts of the person in the car, but you are permitted to express your views about the conduct as to whether it benefits the gang or other elements under the statute. [] The Witness: Yes, your honor. [] . . . [T]he fact that four or three . . . gang members from East Coast Crips can go into that block and exit the car and get out for whatever reason, it doesnt happen, its very, very highly, highly unlikely thats going to happen . . . just to take a stroll down the street. [] If they get out of the car in that neighborhood, theres a certain reason theyre going there for, and its not to just go take a stroll. [] [The area of the shootings] is probably the hardest part of Broadway Gangster Crips [territory]; thats where you always find them hanging out. [] The fact that East Coast Crip gang members drive to that neighborhood, get out of the vehicle, and if one stays in the vehicle, not knowing supposedly where the other ones are going, its just very highly unlikely thats going to happen, just because of the territory theyre in, the fact they know where theyre at and theyre going there, theyre going there specifically to shoot somebody. (Italics added.)^[1]

Hunter did not present a defense. The prosecutions trial theory was that Hunter aided and abetted the shooters by acting as the getaway driver, and the court instructed the jury regarding an aider and abettors criminal liability pursuant to CALCRIM Nos. 400 and 401.^[2] The prosecutor argued to the jury that Hunter was the getaway driver based on Hamptons description of the cars movements before, during, and after the shootings, Hunters admissions to the detectives that he was alone in the car during the shootings, and Hunters admissions to Gaines that he and a fellow gang member shot rival gang members. The prosecutors only reference to the experts testimony quoted above came in her opening argument: You heard from the gang expert, and you heard from Mr. Gaines too. [Hunter] did not just cruise into rival gang territory. Youre asking to get shot or killed or hurt badly if you do.

The jury deliberated slightly more than two hours before convicting Hunter of first-degree murder in which a principal discharged a firearm causing death (count 1) and premeditated attempted murder (count 2), both committed to benefit a gang and in both of which a principal discharged and used a firearm.

I. Sufficient Evidence Supports Hunters Convictions as an Aider and Abettor.

Hunter contends that insufficient evidence supports his convictions for murder and attempted murder. He argues that the evidence only placed him at the scene of the crime with fellow gang members, but did not show that he shared the shooters intent or committed an act which aided and abetted the shooters commission of the crimes. The contention lacks merit.

The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonable deduce from the evidence. [] Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless 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 on which that determination depends. Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witnesss credibility for that of the fact finder. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206, internal quotations and citations omitted.) When undertaking such review, our opinion that the evidence could reasonably be reconciled with a finding of innocence or a lesser degree of crime does not warrant a reversal of the judgment. [Citation.] (People v. Hill (1998) 17 Cal.4th 800, 849.)

A person aids and abets the commission of a crime when he . . . , (i) with knowledge of the unlawful purpose of the perpetrator, (ii) andwith the intent or purpose of committing, facilitating, or encouraging commission of the crime, (iii) by act or advice, aids, promotes, encourages or instigates the commission of the crime. [Citations.] (People v. Hill, supra, 17 Cal.4th at p. 851.)

Whether defendant aided and abetted the crime is a question of fact, and on appeal all conflicts in the evidence and reasonable inferences must be resolved in favor of the judgment. [Citation.] [] . . . [] . . . [I]n general neither presence at the scene of a crime nor knowledge of, but failure to prevent it, is sufficient to establish aiding and abetting its commission. [Citations.] However, [a]mong the factors which may be considered in making the determination of aiding and abetting are: presence at the scene of the crime, companionship, and conduct before and after the offense. [Citation.] (People v. Campbell (1994) 25 Cal.App.4th 402, 409.)

Applying these principles to our facts, we conclude that sufficient evidence supports Hunters convictions for murder and attempted murder. Contrary to Hunters argument, the evidence not only placed him at the scene with his fellow gang members but showed that he shared their intent and acted to facilitate the shootings. First, Hampton, the attempted murder victim, testified that after the two shooters alighted from the Chrysler, the car turned around and slowly followed the shooters back toward the victims, ensuring that the shooters would be able to make a quick getaway. The jury reasonably could infer from this evidence that the driver of the car shared the shooters intent before and during the shooting by facilitating their escape. Obviously, Hamptons description compels the conclusion that at least one person remained in the Chrysler after the two shooters got out. Second, in his final statement to the police, Hunter insisted that only two fellow gang members were with him in the car, and denied his earlier statement that he had three companions during the shooting. If believed by the jury, as it was entitled to do, Hunters statement made him the only occupant of the car after the two shooters got out. Thus, despite Hunters denial that he was the driver, the jury reasonably could infer from his statements and Hamptons testimony that he was the only person in the car during the shooting and thus was the getaway driver who positioned the car before the shooting to facilitate the shooters escape. Third, Gaines testified that Hunter confessed to being an active participant in the shooting as part of the East Coast Crips retaliatory war against the Broadway Crips. This evidence is sufficient to support both convictions.

We reject Hunters argument that his statement to Gaines does not constitute substantial evidence. Hunter argues that Gaines was unreliable because he was a paid informant. The jury, however, was entitled to weigh that fact in determining whether to credit Gaines testimony. The jury impliedly credited Gaines testimony in reaching its verdicts, and we cannot substitute our evaluation of his testimony for that of the jury. Second, we reject Hunters suggestion that his admission to Gaines only showed his mental state after the crimes and thus was insufficient to show that he shared the shooters intent before or during the shootings. Hunter told Gaines that he and a fellow gang member shot people who they thought were rival Broadway Crips. Although uttered after the crimes, the jury reasonably could find that the statement showed that Hunter shared the shooters intent during the crime. In any event, as discussed in the preceding paragraph, even if the jurors disregarded Gaines testimony, they reasonably could infer from Hamptons testimony and Hunters admissions that Hunter was the get away driver.

II. The Court Was Not Required to Instruct the Jury That Hunter Could be
Convicted of a Lesser Crime Than the Actual Perpetrators.

Hunter contends that the court erred in not instructing the jury sua sponte that he could be guilty of a lesser crime than murder or attempted murder, the crimes committed by the shooters. Hunter argues that this error prevented the jury from adequately analyzing his defense that he was present but knew nothing about and did not intend that a shooting occur, and presented them with a false all-or-nothing choice between conviction of the charged crimes and acquittal. The contention lacks merit.

In support of his position, Hunter cites People v. McCoy (2001) 25 Cal.4th 1111, 1118. McCoy held that an aider and abettor can be convicted of a greater crime than the actual perpetrator, if the aider and abettor intends to commit the charged crime but the actual perpetrator possesses a defense not available to the accomplice which may lower the perpetrators but not the accomplices culpability. As an example, the court explained that an actual killer may have acted in unreasonable self-defense, making him guilty only of voluntary manslaughter, but if the accomplice also intended to kill but had no unreasonable belief in self-defense, he could be guilty of murder.

Hunter does not explain what lesser crime he may have committed under the evidence in this case. He suggests that the jury could have found he was an accessory after the fact ( 32) if he was present at the scene, did not share the shooters intent, but nonetheless assisted them. We disagree. First, being an accessory is not a lesser-included crime of murder. (People v. Preston (1973) 9 Cal.3d 308, 319.) Second, there was no evidence from which the jury reasonably could have found Hunter to be an accessory, i.e., that he intentionally assisted the shooters only after the crime occurred. As discussed in section I, the evidence showed Hunter assisted the shooters before and during the shootings, making him an aider and abettor. Hunter claimed that he neither intended to assist the shooting nor did anything to do so, and that he passively sat as a passenger in the car before and after the shooting. Thus, because there was no substantial evidence that Hunter aided and abetted any lesser crime than the shooters, the court was not required to so instruct. (People v. Cole (2004) 33 Cal.4th 1158, 1215.)

III. Any Error in Permitting the Expert to Opine That Hunters
Defense was Very Highly Unlikely was Harmless.

Hunter contends that the court prejudicially erred in permitting the gang expert to give an opinion that was tantamount to telling the jury [Hunter] was guilty of the charged offenses as an aider and abettor and the gang allegation was true. Hunter argues that the experts opinion that the shooting benefited the gang was improper because Hunters reason(s) for being present at the scene with his fellow gang members was the key determination the jury had to make in determining whether [he] was culpable for the charged offenses as an aider and abettor and the . . . gang allegations w[ere] proven. [The expert]s expert opinion improperly provided this element, short circuiting the jurys role. The Attorney General responds that Hunter waived the argument by not specifically objecting under Evidence Code section 352, that the court properly admitted the experts testimony, and that any error was harmless.^[3]

We reject Hunters contention that the court erred in admitting the experts testimony that a hypothetical shooting similar to that in this case furthered the purposes of the individual gang members and the gang as a whole. We agree with the Attorney General that Hunter waived this specific claim by failing to object to the evidence. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1116, fn. 20.) Moreover, even had an objection been interposed, this testimony constituted proper expert opinion that these crimes benefited a gang and its members, which the gang enhancement placed in issue. (People v. Gardeley (1996) 14 Cal.4th 605, 617-619.)

Regarding the experts opinion that it was very highly unlikely that, under all the circumstances of the shootings in this case, a gang member present in the car would not have known that a shooting was intended, however, we reject the Attorney Generals argument that Hunter waived this issue by failing to include Evidence Code section 352 as a ground for his objection. Hunter objected to this evidence as calling for speculation, but did not specifically mention Evidence Code section 352. Although many cases analyze the admissibility of gang evidence in the context of Evidence Code section 352, that is not the only basis on which such evidence may be challenged. The objection was valid because a gang expert may not opine regarding a defendants subjective intent in committing the charged crime. (People v. Killebrew (2002) 103 Cal.App.4th 644, 647, 651-659; People v. Torres (1995) 33 Cal.App.4th 37, 43-47.) For these reasons, Hunters objection sufficiently preserved the issue for review.

Even assuming that the court erred in admitting the very highly unlikely portion of the experts testimony (People v. Killebrew, supra, 103 Cal.App.4th at pp. 647, 651-659; People v. Torres, supra, 33 Cal.App.4th at pp. 43-47), we conclude that the error was harmless. We review the erroneous admission of gang evidence under the standard enunciated in People v. Watson (1956) 46 Cal.2d 818, 836 under which reversal is warranted only if we conclude that it is reasonably probable that a result more favorable to the appealing party would have been reached absent the error. (People v. Valdez (1997) 58 Cal.App.4th 494, 511; People v. Maestas (1993) 20 Cal.App.4th 1482, 1498.)

Although no eyewitness placed Hunter at the crime scene and no forensic evidence linked him to the crime, Hamptons account of the shooting demonstrated that the Chryslers driver shared the shooters intent before and after the crime and aided them by dropping them off in front of their intended targets and then positioning the car to facilitate their quick and successful escape. Hunters admissions to the police showed he was present and alone in the car during the shootings, demonstrating that he was the driver despite his denials of that fact. The combination of Hamptons description and Hunters admissions demonstrated he was the driver without reference to any other evidence. Moreover, Hunters statements to Gaines buttressed the other evidence by demonstrating his knowing and active participation in the shootings. Gaines, although an informant, reported Hunters admissions only a few days after the shootings and months before Hunters arrest, making his testimony more credible. The experts opinion that Hunters exculpatory statements were very highly unlikely added little, if anything, to the weight of the evidence against him, particularly given the properly admitted portion of the experts testimony. We reject Hunters argument that the prosecutors argument emphasized the experts challenged opinion; as noted above, the prosecutor made only a single passing reference to that evidence. For these reasons, it is not reasonably likely that Hunter would have obtained a more favorable result absent any error in admitting the very highly unlikely portion of the experts testimony. (People v. Torres, supra, 33 Cal.App.4th at pp. 49-52 [error in admitting officers opinion regarding the defendants subjective state of mind harmless].)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.

ROTHSCHILD, J.

We concur:

MALLANO, Acting P.J.

VOGEL J.

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^[1] The court instructed the jury regarding expert testimony pursuant to CALCRIM No. 332 (Fall 2006 ed.) as follows: Witnesses were allowed to testify as experts and to give opinions. You must consider the opinions, but you are not required to accept them as true or correct. The meaning and importance of any opinion are for you to decide. In evaluating the believability of an expert witness, follow the instructions about the believability of witnesses generally. In addition, consider the experts knowledge, skill, experience, training, and education, the reasons the expert gave for any opinion, and the facts or information on which the expert relied in reaching that opinion. You must decide whether information on which the expert relied was true and accurate. You may disregard any opinion that you find unbelievable, unreasonable, or unsupported by the evidence. [] An expert witness may be asked a hypothetical question. A hypothetical question asks the witness to assume certain facts are true and to give an opinion based on the assumed facts. It is up to you to decide whether an assumed fact has been proved. If you conclude that an assumed fact is not true, consider the effect of the experts reliance on that fact in evaluating the experts opinion. All further CALCRIM references are to the Fall 2006 edition.

^[2] As relevant, the court instructed the jury as follows: To prove that [Hunter] is guilty of a crime based on aiding and abetting that crime, the People must prove that: [] 1. The perpetrator committed the crime; [] 2. [Hunter] knew that the perpetrator intended to commit the crime; [] 3. Before or during the commission of the crime, [Hunter] intended to aid and abet the perpetrator in committing the crime; and [] 4. [Hunter]s words or conduct did in fact aid and abet the perpetrators commission of the crime. [] Someone aids and abets a crime if he knows of the perpetrators unlawful purpose and he specifically intends to, and does in fact, aid, facilitate, promote, encourage, or instigate the perpetrators commission of that crime. [] If all of these requirements are proved, [Hunter] does not need to actually have been present when the crime was committed to be guilty as an aider and abettor. [] If you conclude that [Hunter] was present at the scene of the crime or failed to prevent the crime, you may consider that fact in determining whether [Hunter] was an aider and abettor. However, the fact that a person is present at the scene of a crime or fails to prevent the crime does not, by itself, make him . . . an aider and abettor. (CALCRIM No. 401.)

^[3] Although we reject contention III on its merits, we address the waiver issue at the Attorney Generals request because of its potential effect on any subsequent collateral federal review. (Coleman v. Thompson (1991) 501 U.S. 722, 750; Harris v. Reed (1989) 489 U.S. 255, 264, fn. 10.)