P. v. Hodge

Filed 9/26/07 P. v. Hodge CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County, John Vernon Meigs, Judge. Affirmed with directions.

Brett Harding Duxbury, 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, Scott A. Taryle and Ana R. Duarte, Deputy Attorneys General, for Plaintiff and Respondent.

_________________

Raymond Joe Hodge appeals from the judgment entered following his convictions by jury on count 1 first degree murder (Pen. Code,  187) with a discharge of a firearm from a motor vehicle special circumstance (Pen. Code,  190.2, subd. (a)(21) and a criminal street gang special circumstance (Pen. Code,  190.2, subd. (a)(22)), with firearm use (Pen. Code, 12022.53, subd. (b)), personal discharge of a firearm ( 12022.53, subd. (c)), and personal discharge of a firearm causing death (Pen. Code,  12022.53, subd. (d)), three counts of assault with a firearm (Pen. Code,  245, subd. (a)(2); counts 2 through 4) with firearm use (Pen. Code,  12022.5, subd. (a)(1)), and count 5 attempted willful, deliberate, and premeditated murder (Pen. Code, 187, 664) with firearm use (Pen. Code,  12022.53, subd. (b)), personal discharge of a firearm (Pen. Code, 12022.53, subd. (c)), and personal discharge of a firearm causing great bodily injury (Pen. Code, 12022.53, subd. (d)), each offense having been committed for the benefit of a criminal street gang (Pen. Code, 186.22, subd. (b)(1)). The court sentenced appellant to prison for life without the possibility of parole, with a consecutive term of life with the possibility of parole, two consecutive terms of 25 years to life, plus 19 years 4 months. Appellant contends the trial court committed trial and sentencing errors. We affirm the judgment with directions.

FACTUAL SUMMARY

1. Peoples Evidence.

a. The Murder of Lee Denmon.

About 10:00 a.m. on March 14, 2003, Lee Denmon (the decedent) and Jimmie Burton went in Denmons car from Denmons home to his place of employment to get Denmons paycheck. Denmon spent about 10 minutes at his place of employment, then he and Burton returned to Denmons home. Denmon and Burton remained in the car and talked about 10 minutes before Ryan Carter (Ryan) arrived. Denmon, Burton, and Ryan knew each other from high school. The three talked outside Denmons home for about 10 minutes. Ryan was a member of the Avenue Pirus gang, which was a Bloods gang. Neither Denmon nor Burton were gang members.

Appellant drove up in a car which had a burgundy interior. Burton testified the car was a two-door Oldsmobile or Chevrolet. He also testified that the cars roof was a faded gray, and its paint was chipping as a result of exposure. Burton did not pay attention to the side of the car. Burton testified appellant was wearing a white T-shirt.

Appellant asked, Where you all from and, raising his voice, later asked Hey, dog, where you guys from? Denmon replied, Nobody. Nobody gang bangs around here. Appellant demanded that the three raise their shirts and shirtsleeves and they complied. Appellants left hand was on the steering wheel, and his right hand was holding a gun pointed down. Appellant was staring at the three men with a mean look. Burton fled, fearing the three would be shot. Burton heard appellant ask, Why cuz run and, after Burton (the victim as to count 4) jumped a fence, he heard three gunshots.

Ryan, replying to appellants question, said it seemed appellant had a gun in his hand. Appellant told Denmon and Ryan that appellant would shoot them if they ran. Denmon and Ryan fled. Ryan turned around and saw appellant put a gun out the window and fire it. Ryan (the victim as to count 3) heard two gunshots. Denmon was shot and mortally wounded (counts 1 & 2). Appellant casually drove away.

Ryan called 911, tried to calm Burton, and indicated Denmon was dead. Ryan gave the phone to Burton, indicated Burton had to handle things, and left. Burton called 911 and reported the shooting. Police arrived about six minutes later. Ryan went home, told a relative what had happened, and the relative contacted the police. Ryan went to the police station and told police what happened. According to Ryan, the suspect vehicle was a black two-door Chevrolet Beretta, and Ryan told a detective that a car depicted in photographs which the detective showed to Ryan resembled the suspects car. Ryan said the suspect vehicles hood was faded and looked beat up.

The detective also showed Ryan a photographic identification folder containing six photographs, including appellants. Ryan identified appellants photograph as depicting Denmons assailant. Ryan also identified appellant as the shooter at the preliminary hearing. After the preliminary hearing, Ryans name was in a newspaper, he believed his safety was in jeopardy, and he did not want to come to court. Ryan testified that he could not identify appellant at trial because the photograph that had been shown to Ryan had not been in the best condition. Ryan did testify that appellant resembled the gunman. Ryan had suffered a misdemeanor conviction for lying to police when, following a traffic stop, he falsely identified himself.

A detective showed Burton a photographic identification folder containing six photographs, including appellants. Burton identified appellants photograph as depicting the person who had asked Denmon, Burton, and Ryan where they were from. Burton testified at trial that the gunman was clean-cut and his left eye was kind of low. The gunmans skin was dark and his hair was very short. Burton positively identified appellant at trial as the gunman. Burton also testified that appellants hair at trial was longer than it was at the time of the incident. Burton, years before trial, had suffered a theft conviction. In the present case, he lied to police when police asked him if there were other witnesses to the crime. Burton knew Ryan had been a witness, but failed to mention him. Burton felt Ryan had left Denmon and Burton in their time of need, so Burton chose to disregard Ryan.

b. The Shooting Of Eric Hines.

About 11:45 a.m. on March 14, 2003, Eric Hines was driving a car near Van Ness and Century and waiting at a stop sign in order to turn onto Century. Appellant drove eastbound past Hines in a black two-door Beretta with a red or burgundy interior. Hines was not certain about the color of the cars interior. Appellant looked twice at Hines as if appellant recognized him. Appellant drove around the block and drove alongside the drivers side of Hiness car. Appellants car was in the lane for opposing traffic. Appellants front passenger window was completely open, and Hiness drivers window was partially open.

Appellant, the sole occupant of his car, asked who lived around there and if Hines lived around there. Hines replied that he did. Appellant, holding a gun in his hand and extending his arm, began shooting at Hines. One of the bullets hit Hines. Hines sped away eastbound on Century, driving on the wrong side of the street and blowing his horn to attract attention. Appellant pursued Hines a few blocks and continued firing at him before the two drove in different directions (count 5).

Each of two detectives separately showed Hines a photographic identification folder containing six photographs, including appellants photograph. Hines identified, from each folder, appellants photograph as depicting the shooter. Hines also identified from photographs the vehicle appellant drove. Hines was not a gang member. Hines positively identified appellant as the shooter at the preliminary hearing. Hines did not testify at trial, but his preliminary hearing testimony was received at trial.

During appellants cross-examination of Hines at the preliminary hearing, Hines testified the events happened rather quickly. Hines testified he remembered a Cavalier or Beretta, and that the cars looked the same. Hines probably recalled describing the car as having a dark color, possibly black or possibly gray. Appellants counsel asked if the car was a Chevy Cavalier, and Hines replied it probably was. Hines seemed to remember telling police that he saw the bullet come out of the gun. Between 1991 to 1993, Hines suffered a conviction for perjury. He also had suffered a forgery conviction.

About 11:45 a.m. on March 14, 2003, Kenneth Carter (Carter), an accountant, was entering his SUV which was parked on Century. Carter heard a gunshot, looked westbound towards Van Ness, and saw an eastbound blue car pass by. Carter did not see the cars driver. The blue car, accelerating and swerving, was being followed by a black Chevrolet Beretta with a red pinstripe. The two cars were traveling at least 40 miles per hour, were coming toward Carter, and were separated by about two car lengths. Appellant was driving the Beretta. Appellant, his left arm extended, repeatedly shot a revolver toward the blue car. Carter had a good opportunity to see appellants face. After the third shot, Carter saw the cars travel in different directions. Carter was later told that a man who had been shot was at a location. Carter went there, saw the blue car, and saw a man who had been shot.

Each of two detectives, one of whom was Los Angeles Police Detective Kurt Messerschmidt, separately showed Carter a photographic identification folder containing six photographs, including appellants photograph. Carter identified, from each folder, appellants photograph as depicting the driver of the Beretta. Carter testified that when Messerschmidt first showed photographs to Carter, Carter selected a photograph and said It looks like him. Carter testified he later said Its him. The prosecutor asked why Carters testimony changed. Carter suggested he had first glanced at the photograph. He then testified that the incident was imbedded in his mind, he looked at the photograph again, appellants lips stood out, and it all came together. Carter also identified from photographs the car appellant drove. Carter positively identified appellant at trial.

c. Additional Evidence.

Los Angeles County Sheriffs Department Senior Criminalist Manuel Munoz analyzed three expended bullets. Two were recovered from the Denmon crime scene, and the third from Hiness chest. Munoz took measurements of the bullets and examined them under a compound microscope for correspondence and individual marks. The laboratory at which Munoz conducted his examination was accredited. Munoz opined that all three bullets were fired from the same revolver, a .38-special or a .357-magnum. On March 14 and March 15, 2003, police found in appellants home, inter alia, various letters written by Lynette Quinnie, the mother of appellants daughter. Police arrested appellant at 11:25 p.m. on March 14, 2003, at his home.

About 3:00 a.m. on March 15, 2003, Quinnie was driving appellants black Beretta. Quinnie slowed as she drove towards appellants home on Manhattan Place, then sped away when she saw police outside. Quinnie twice failed to stop for stop signs and detectives stopped her. Quinnie told police that it was a little unusual for appellant to let her use the car. Quinnie also told police that the Berettas front passenger window did not roll down. However, during trial, she acknowledged that she and appellant had tried to fix the window and it opened two inches.

Quinnie admitted to police that in November 2002, she wrote a letter to appellant in which she confronted appellant about his gang membership. Quinnie was angry with appellant because he was a gang member, and she would not have dated him had he not lied to her about his gang membership. Appellant had written to her that he loved her, and had expressed his love to her in terms which she interpreted as also referring to appellants gang.

Messerschmidt testified he was assigned to Operation Safe Streets, which dealt with gang-related crimes. He had testified as a gang expert about 20 times and had lectured on the subject. In March 2003, Messerschmidt was assigned to the Rolling 90 Crips, the Ten Deuce Budlong Crips, and the Hard Time Hustler Crips gang. Denmons home was located in Avenue Pirus territory.

Messerschmidt testified that, in order to gain respect from fellow gang members, a gang member had to commit violent crimes, including shootings and attempted murders. A gang member asked where a person was from to determine if the person was a rival gang member. A gang member asked a person to lift the persons shirt to determine if the person had a gun or gang tattoos.

According to Messerschmidt, the Hard Time Hustler Crips had about 110 documented active members. The gangs boundaries were Century on the north, 108th Street on the south, Western on the east, and Van Ness on the west. The territory included Manhattan Place. A Hard Time Hustler Crips gang member named Andrew Prabon had been killed within that gangs territory two days before Denmon was killed.^[1]

2. Defense Evidence.

In defense, Paula Hodge (Paula), appellants mother, testified as follows. Appellant purchased the Chevrolet Beretta on November 9, 2001. The passengers side window came down only about an inch. The morning after appellant was arrested and police searched the house, Paula spoke with Dahrik Edwards. Paula told Edwards that appellant had been arrested.

Edwards testified he and appellant were friends and had known each other for about 16 years. Edwards had been with appellant the day before police arrested appellant, although Edwards could not remember the date he had been with appellant. The day before police arrested appellant, Edwards and appellant saw each other between 10:00 and 10:45 a.m. outside Edwardss home. Edwards and appellant remained together until about 3:30 to 4:00 p.m. The day after police arrested appellant, Paula told Edwards about the arrest.

At trial, Edwards denied that he previously had told the prosecutor and detectives that Edwards had spoken with Paula after he got off work that day. If the Denmon shooting had occurred on a Friday, Edwards could not have spoken to Paula after he got off work, because he did not work on Saturdays.

Michael Stapleford, a licensed consulting professional engineer specializing in accident investigation, opined that Carter would have had about l.07 seconds to see the face of the driver of a Beretta passing by at 40 miles per hour. Robert Shomer, an eyewitness identification expert, testified, inter alia, that eyewitness identifications of strangers were very unreliable. Shomer testified concerning various factors that adversely impacted eyewitness identifications. He also testified it was important to separate the level of accuracy from the level of the witnesss expression of confidence concerning the identification.

John Jacobson, a firearms examiner who had testified as a ballistics expert, acknowledged his laboratory was not certified by any firearms classification system. Jacobson compared the three expended bullets and concluded there were insufficient requisite individual characteristics to support a determination that all three bullets were fired from the same firearm. Jacobsons written notes were prepared about a year before his trial testimony, but they were submitted to the prosecutor on the day Jacobsen testified at trial.

3. Rebuttal Evidence.

In rebuttal, Dale Higashi, an agent of the Colorado Bureau of Investigation since 2004, previously had been employed by the Los Angeles County Sheriffs Department for over 18 years. Higashi spent over 14 of those years in the firearms identification section, and he had testified as an expert over 500 times. The laboratory of the Los Angeles County Sheriffs Department was certified. As of 2003, Munoz had been a firearms examiner for three years. Higashi had helped train Munoz and had reviewed his work. Higashi reviewed Munozs work in the present case and found nothing remarkable. Like Munoz, Higashi opined that all three previously mentioned bullets were fired from the same firearm.

The parties stipulated that if a named defense investigator were called as a witness, he would testify that he interviewed Quinnie in October 2004. She told him that the window in appellants car was an electric window. Six months after appellant obtained the car, they tried to close the window, but it would only partially close. They tried to fix the window but it broke and fell into the door. They eventually managed to close the window.

Detectives and the prosecutor interviewed Edwards a week before his trial testimony. During that interview, Edwards repeatedly said that, after he got off work, Paula came to him and told him about appellants arrest.

4. Surrebuttal Evidence.

In surrebuttal, Edwards testified he had been interviewed by detectives and the prosecutor the week before Edwardss testimony. Edwards did not recall saying that Paula approached him after he got home from work. Instead, Edwards had said that Paula contacted him on the afternoon following appellants arrest.

CONTENTIONS

Appellant contends: (1) evidence that police had investigated him for general crimes, and a fellow gang member had been killed two days before the present offenses, should have been excluded under Evidence Code section 352, (2) the receipt of such evidence violated his federal right to due process, (3) the trial courts instruction concerning witness certainty as to an identification was erroneous, (4) said instruction violated appellants federal right to due process, (5) the prosecutor committed misconduct in violation of appellants federal right to due process by commenting that lying alibi witnesses always give themselves away, (6) the Penal Code section 190.2, subdivision (a)(21), special circumstance violates federal due process, (7) the trial courts imposition of life without the possibility of parole on count 1 was cruel and unusual punishment, (8) the abstract of judgment must be corrected to reflect that the court stayed punishment on count 2, and (9) the abstract of judgment must be corrected to reflect that the court imposed a term of 15 years to life plus enhancements on count 5.

DISCUSSION

1. The Court Did Not Err by Receiving Evidence that Police Investigated General Crimes Involving Appellant and that a Fellow Gang Member Had Been Killed Before the Present Offenses.

Appellant presents related claims that the trial courts receipt of evidence that police had investigated him for general crimes, and a fellow gang member had been killed two days before the present offenses, should have been excluded under Evidence Code section 352, and receipt of said evidence violated his federal right to due process. We reject the claims.

a. Messerschmidts Testimony Regarding General Crimes.

(1) Pertinent Facts.

During the Peoples direct examination of Messerschmidt, the People asked if he had an opinion as to whether appellant was a Hard Time Hustler Crips gang member. Messerschmidt replied yes, the People asked what that opinion was, and Messerschmidt testified it was his opinion that appellant was a member of that gang. The People asked Messerschmidt for the basis for his opinion, and Messerschmidt replied it was based on field identification cards, and his personal contact with appellant when appellant had been with other Hard Time Hustler Crips gang members.

The following later occurred: Q. What else is it based on? [] A. Its based on the fact that, again, hes been stopped with other Hard Time Hustler Crips members by patrol deputies as well as myself. [] [Defense Counsel]: Objection. By patrol deputies, assumes -- [] The Court: Overruled. [] [Defense Counsel]: -- Facts in evidence. [] The Witness: And the general crimes that Ive investigated involving Mr. Hodge. [] [Defense Counsel]: Objection, your Honor. [] The Court: Overruled.

Messerschmidt later testified that various items served as bases for his opinion, including letters seized from appellants home. Messerschmidt indicated that in one such letter, appellants girlfriend had asked why appellant had not told the girlfriend that he was a gang member. The letters also contained names of persons whom Messerschmidt personally knew, based on previous contacts and other investigations, were Hard Time Hustler Crips gang members.

Messerschmidt had also reviewed letters containing gang terminology, and Messerschmidt testified that in one such letter the writer apparently informed appellant about what had been happening in the Hard Time Hustler hood. During its final charge to the jury, the court gave CALJIC No. 2.80 on expert testimony.^[2]

(2) Analysis.

(a) The Court Did Not Err by Admitting the Challenged Testimony.

Appellant claims that Messerschmidts reference to the general crimes that Ive investigated involving Mr. Hodge[] was testimony that should have been excluded under Evidence Code section 352. We note at the outset that appellant did not pose an Evidence Code section 352 objection, or any specific objection, to the testimony at issue. However, there is no need to decide whether appellant waived the section 352 issue for that reason. (See Evid. Code,  353.)

Appellant does not expressly dispute the relevance or admissibility of Messerschmidts expert opinion testimonythat appellant was a Hard Time Hustler Crips gang memberfor which testimony the challenged testimony merely served as a basis. Appellant does not expressly dispute the relevance or admissibility of Messerschmidts testimony concerning the other multiple bases for his expert opinion testimony that appellant was a Hard Time Hustler Crips gang member. Nor does appellant expressly claim that, in light of Evidence Code section 801, subdivision (b), the challenged testimony was an improper basis for expert opinion testimony. In these circumstances, appellant argues the admission of the challenged predicate testimony was reversible Evidence Code section 352 error. We disagree.

An appellate court will not disturb a trial courts ruling under Evidence Code section 352 absent an abuse of discretion. (People v. Lewis (2001) 26 Cal.4th 334, 374; People v. Cudjo (1993) 6 Cal.4th 585, 609.) To find that an abuse of discretion has occurred requires a showing that the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.)

In the present case, the challenged testimony supported the expert opinion testimony that appellant was a Hard Time Hustler Crips gang member, which testimony in turn was relevant to the issue of appellants motive and, therefore, his identity as the person who killed Denmon. The identity issue (as well the criminal street gang enhancement allegation) was a matter in dispute; appellant had pled not guilty and did not concede at trial that he was the person who killed Denmon or that the enhancement allegation was true. Messerschmidt was a gang expert assigned to monitor the gang activities of, inter alia, the Hard Time Hustler Crips gang, and the jury reasonably could have concluded from that fact that he investigated such activities as well as crimes committed by that gang. The fact that appellant not only associated with the gangs members but was involved with crimes investigated by Messerschmidt provided strong support for his opinion that appellant was a member of that gang by showing the extent of appellants gang association. The fact of appellants involvement with crimes investigated by Messerschmidt was not cumulative.

Moreover, Messerschmidt did not specify the nature of the general crimes at issue, and did not expressly indicate the nature of appellants involvement therein. The challenged predicate testimony was no more inflammatory than Messerschmidts opinion testimony that appellant was a Hard Time Hustler Crips gang member, and was no more inflammatory than Messerschmidts testimony concerning the other multiple bases supporting that opinion. The challenged predicate testimony, which was a brief sentence fragment, occurred in the midst of Messerschmidts testimony concerning multiple bases for his opinion, and Messerschmidt did not emphasize the challenged testimony. The court did not abuse its discretion by not excluding the challenged testimony under Evidence Code section 352. Moreover, the application of ordinary rules of evidence here did not violate appellants federal right to due process. (Cf. People v. Boyette (2002) 29 Cal.4th 381, 427-428; People v. Mincey (1992) 2 Cal.4th 408, 440.)

(b) The Challenged Testimony Was Not Prejudicial.

Even if the trial court erred by failing to exclude the evidence under Evidence Code section 352, this does not warrant reversal of the judgment. There is no real dispute that someone committed the offenses at issue in counts 1 through 5. Appellant concedes the real issue was identity. We have set forth the pertinent facts and will not repeat them in detail here. Suffice it to note that Ryan and Burton identified appellant as the shooter with respect to counts 1 through 4, and Burton was positive of his identification. Hines and Carter positively identified appellant as the shooter with respect to count 5. There was evidence that the car used during all of the shootings was the same car. The People presented evidence from firearm experts that bullets fired during these two sets of shootings came from the same firearm. There is no dispute as to the admissibility of Messerschmidts expert opinion testimony that appellant was a Hard Time Hustler Crips gang member, or as to the admissibility of the bases for that opinion other than the challenged basis. The court instructed the jury on expert opinion testimony and how to consider such opinions and their bases. The challenged error was not prejudicial. (Cf. People v. Watson (1956) 46 Cal.2d 818, 836.)

b. Messerschmidts Testimony Regarding The Prabon Killing.

(1) Pertinent Facts.

During the Peoples direct examination of Messerschmidt, but outside the presence of the jury, the prosecutor indicated he wished to elicit testimony from Messerschmidt, who was also the investigator in the present case. The testimony the prosecutor sought to elicit was that, two days before the Denmon murder, Andrew Prabon, a Hard Time Hustler Crips gang member, was shot and killed.

The court suggested the Peoples theory of admissibility was that the Denmon murder was a random event resulting from the Prabon killing. The prosecutor suggested the police suspected that the Avenue Pirus gang killed Prabon, but the prosecutor indicated he did not intend to introduce evidence that that gang was responsible for the Prabon killing. During later discussions, appellant indicated the police report pertaining to the Prabon killing reflected that other persons wounded during that shooting said they thought that Avenue Pirus gang members had done the shooting.

The court noted that Ryan had testified he was a member of the Avenue Pirus gang. Appellant observed that Ryan had also testified he had never seen the suspect in the Prabon killing. The court indicated the prosecutor wanted to elicit testimony from Messerschmidt that Hard Time Hustler Crips gang members shot Denmon in retaliation for the Prabon shooting. The court ruled that evidence as to what persons had said or believed concerning who committed the Prabon shooting was irrelevant. The prosecutor noted that the only testimony he wanted to elicit was that Prabon, a Hard Time Hustler Crips gang member, was murdered two days before the present offenses. Appellant objected on the ground the testimony would be prejudicial. The court overruled the objection but indicated Messerschmidts testimony would be limited as previously discussed.

Messerschmidt later testified before the jury that, two days before the Denmon murder, Prabon was killed in the neighborhood of the Hard Time Hustler Crips gang. Messerschmidt also testified that, during previous contacts with Prabon, he had admitted to Messerschmidt that Prabon was a member of that gang.

(2) Analysis.

Appellant claims that Messerschmidts testimony that, two days before the Denmon murder, Prabon was killed in the neighborhood of the Hard Time Hustler Crips gang should have been excluded under Evidence Code section 352. We disagree.

Appellant does not expressly dispute the relevance of the testimony. There were about 110 documented active members of the Hard Time Hustler Crips gang within a local neighborhood area, the boundaries of which have previously been described. Appellant lived in that area. There was evidence that he was a member of the gang. Prabon, another member of the gang, was killed in the gangs territory two days before the present offenses. These facts supported an inference that appellant had heard about the Prabon killing.

Moreover, Messerschmidt testified that a gang member committed shootings and attempted murders to increase the gang members status in the gang. There was evidence that appellant asked questions just before shooting Denmon that were indicative of appellants gang motivation. According to Hines, it was only after appellant asked who lived around there and if Hines lived around there that appellant began shooting at him. It is common knowledge that gang members terrorize people in an area by randomly shooting innocent persons who are not gang members as well as by shooting rival gang members.

Further, as suggested by the trial courts comments about the Peoples proffer, the jury reasonably could have concluded that appellant selected his victims at random. No evidence, inflammatory or otherwise, was presented that appellant had killed anyone before the Denmon shooting. Again, appellant concedes the issue in this case was identity. The evidence of the Prabon killing was not only relevant but provided strong, and not unduly prejudicial, evidence that appellant committed the present offenses as a terrorizing act in retaliation for the killing of a fellow gang member.

The trial court did not abuse its discretion by failing to exclude under Evidence Code section 352, the evidence of the Prabon killing. Again, the application of ordinary rules of evidence did not violate appellants federal right to due process. Finally, even if the court erred by not excluding the evidence, the error was not, for reasons previously discussed, prejudicial. (Cf. People v. Watson, supra, 46 Cal.2d at p. 836.)

2. The Trial Court Did Not Err by Giving CALJIC No. 2.92.

Appellant presents related claims that the trial courts giving of that portion of CALJIC No. 2.92 that indicated that the jury could consider The extent to which the witness is either certain or uncertain of the identification when determining the weight to be given eyewitness identification testimony was error and violated his federal right to due process. We disagree.

During discussions about jury instructions, the court indicated it would give CALJIC No. 2.92 on eyewitness identifications.^[3] Appellant objected only to the above quoted portion of the instruction. The court overruled the objection and gave the instruction.

The court did not err. The giving of the instruction, including the challenged portion in particular, was proper. (People v. Johnson (1992) 3 Cal.4th 1183, 1230, fn. 12, 1231-1232; see People v. Wright (1988) 45 Cal.3d 1126, 1143, fn. 14, 1144.)

Appellant argues Brodes v. State (2005) 279 Ga. 435, 614 S.E.2d 766, compels a contrary conclusion. However, our Supreme Courts precedent controls. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Nor did the challenged portion of the instruction violate appellants federal right to due process.

Finally, in light of appellants concession that this was an identity case, and based on our previous discussions on the issue of prejudice, we conclude the challenged instructional error was not prejudicial. (Cf. People v. Watson, supra, 46 Cal.2d at p. 836.)

3. No Prejudicial Prosecutorial Misconduct Occurred.

Appellant claims the prosecutor committed prejudicial misconduct during opening argument by commenting that Edwards [gave] himself away, the way that most of these alibi witnesses give themselves away[.] We disagree.

a. Pertinent Facts.

During opening argument, the prosecutor argued that Edwardss alibi testimony was fabricated. During that argument, the following occurred: [The Prosecutor]: Also, the way that he gives himself away, the way that most of these alibi witnesses give themselves away - - [] [Defense Counsel]: Objection, most of these alibi witnesses assumes facts not in evidence. [] The Court: Again, ladies and gentlemen, this is argument by the attorney. Youve heard the evidence.

The prosecutor subsequently commented that Edwardss demeanor during his testimony was matter of fact and he did not display the outrage that would have been expected if his friend had been falsely accused of the present offenses. The prosecutor also commented appellant had failed to call a logical witness by failing to call Edwards brother as a witness. The court, using CALJIC No. 1.02, instructed the jury during the final charge that statements of counsel were not evidence.

b. Analysis.

Appellant failed to pose an objection that the prosecutor committed misconduct. Nor did appellant request a jury admonition, which would have cured any harm. Appellant waived any issue of prosecutorial misconduct. (Cf. People v. Gionis (1995) 9 Cal.4th 1196, 1215; People v. Clark (1993) 5 Cal.4th 950, 1016; People v. Noguera (1992) 4 Cal.4th 599, 638.)

As to the merits, A prosecutors conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. [Citations.] In other words, the misconduct must be of sufficient significance to result in the denial of the defendants right to a fair trial. [Citation.] A prosecutors conduct that does not render a criminal trial fundamentally unfair violates California law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury. [Citation.] (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 92.) Even if the prosecutor committed misconduct as a matter of state law, the brief comment appellant challenges did not render the trial fundamentally unfair or violate his right to confrontation.

Moreover, the trial court admonished the jury that this is argument by the attorney. Youve heard the evidence. The court later instructed that statements by counsel were not evidence. Appellant concedes this was an identity case and, based on our previous discussions on the issue of prejudice, we conclude the alleged prosecutorial misconduct was not prejudicial. (Cf. People v. Watson, supra, 46 Cal.2d at p. 836.)

4. The Penal Code Section 190.2, Subdivision (a)(21) Special Circumstance Section Does Not Violate Appellants Federal Right to Due Process.

Penal Code section 190.2, subdivision (a)(21), in relevant part, sets forth the following special circumstance: The murder was intentional and perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person or persons outside the vehicle with the intent to inflict death. Appellant contends the subdivision violates his federal right to due process because the subdivision is overbroad. He appears to argue (1) the subdivision is unconstitutional because it defines the special circumstance in the same terms as the third category of first degree murder defined in Penal Code section 189,^[4]with the result that the commission of the third category of first degree murder automatically mandates imposition of LWOP, and (2) the subdivision violates substantive due process as an irrational statute. He also appears to argue that the subdivision is facially unconstitutional because the special circumstance applies (1) not merely to premeditated murders but to unpremeditated murders, and (2) not merely to drive-by murders but to murders committed from a stationary vehicle.

Appellant commendably cites Rodriguez which, however, considered and rejected his arguments, including his facial challenge to the subdivision. (Rodriguez, supra, 66 Cal.App.4th at pp. 164, 166-172.) As to his facial challenge in particular, the general

rule is that a statute must be incapable of constitutional application in any circumstance in order for it to be found facially invalid. (Id. at p. 168, italics added.) An exception applies when a facial challenge is mounted on the basis that the statute is overbroad with the result that it has a chilling effect on a constitutionally protected right. (Ibid.) Application of the exception is dependent upon the imperilment of such a constitutionally protected right. (Id. at p. 170.)

However, as Rodriguez observed, no constitutional right--the exercise of which is imperiled by [the subdivision]--has been identified. . . . (Rodriguez, supra, 66 Cal.App.4th at p. 170.) As Rodriguez also observed, There is, . . . no constitutionally

protected right to shoot a firearm out of a motor vehicle, and defendant does not claim one. (Id. at p. 171.) The overbreadth exception is therefore inapplicable here. (Id. at p. 172.)

Thus, the general rule that, in order for a statute to be found facially invalid, the statute must be incapable of constitutional application in any circumstance, applies here. Moreover, it cannot be said that Penal Code section 190.2, subdivision (a)(21) is incapable of constitutional application in any circumstance, since there is no dispute the subdivision properly applies to deliberate and/or drive-by shootings. (Rodriguez, supra, 66 Cal.App.4th at p. 172.) The Legislative materials, and common knowledge, amply support a judgment that drive-by murders have become a widespread threat to public safety, and a statutory provision directed at deterring such conduct is fully within the power of the Legislature and the voters to adopt. (Ibid.) Appellant concedes The Legislature and voters of this state could plainly provide for increased punishment in cases of drive-by murder. We reject appellants constitutional challenge.

5. Appellants Sentence Was Neither Cruel Nor Unusual Punishment.

The probation report reflects appellant was born in May 1984 and, when appellant was 14 years old, police arrested him for committing a battery on school property. A nondetained petition was filed and the matter was later closed. When he was 17 years old, he suffered a sustained petition for possession of a destructive device (Pen. Code,  12303), for which the court ordered him placed on probation. He also suffered at that age a sustained petition for being a minor in possession of a concealable firearm (Pen. Code,  12101, subd. (a)), and the court ordered him placed in camp. As an adult, in March 2003, appellant was convicted of reckless driving (Veh. Code,  23103) and the court ordered him placed on summary probation for two years.

In the present case, appellant filed a sentencing memorandum as part of a sentencing motion. The memorandum argued a sentence of life without the possibility of parole was cruel and unusual punishment. Appellant urged he was only 18 years old at the time of the present offenses, his prior juvenile record was minimal and did not include violent crimes, he had a small daughter, and his parents supported him.

At sentencing, appellant and his mother personally addressed the court. Appellant denied he was the person who committed the present offenses. The court sentenced appellant to prison on count 1 to life without the possibility of parole, plus 25 years to life for the Penal Code section 12022.53, subdivision (d) enhancement, on count 3 to a consecutive term of 3 years, plus 10 years for the gang enhancement and 4 years for the Penal Code section 12022.5, subdivision (a) enhancement, on count 4 to a consecutive subordinate term of 1 year, plus 16 months for the Penal Code section 12022.5, subdivision (a) enhancement, and on count 5 to a consecutive term of life with the possibility of parole, plus 25 years to life for the Penal Code section 12022.53, subdivision (d) enhancement.

As to count 2, the court imposed a term of 3 years, plus 4 years for the Penal Code section 12022.5, subdivision (a) enhancement, plus 2 years for the gang enhancement. The court declined to impose the Penal Code section 12022.53, subdivision (c) or (d) enhancement. The court later stated that the term imposed on count 2 would be stayed pursuant to Penal Code section 654.

We have set forth the facts pertinent to appellants cruel and unusual punishment contention. Nothing about the crime or appellant compels the conclusion that his punishment is so disproportionate to the crime or his culpability that it shocks the conscience or offends fundamental notions of human dignity. We conclude his sentence did not violate constitutional proscriptions against cruel or unusual punishment. (Cf. People v. Zepeda (2001) 87 Cal.App.4th 1183, 1212-1216; People v. Cooper (1996) 43 Cal.App.4th 815, 823-826; People v. Kinsey (1995) 40 Cal.App.4th 1621, 1631.)

None of the cases cited by appellant compels a contrary conclusion.

6. The Abstract of Judgment Must Be Corrected as to Count 2.

As mentioned, the court stayed punishment on count 2 pursuant to Penal Code section 654. The abstract of judgment erroneously reflects that the trial court imposed punishment on count 2 and its enhancements. Respondent concedes the abstract of judgment must be corrected to reflect that the trial court stayed punishment on count 2. We will direct the trial court to correct the abstract accordingly.

7. The Abstract of Judgment Must Be Corrected as to Count 5.

a. Pertinent Facts.

As mentioned, as to count 5, the court imposed a consecutive term of life with the possibility of parole, plus 25 years to life for the Penal Code section 12022.53, subdivision (d) enhancement pertaining to that count.^[5] Moreover, during sentencing as to that count, the court was in the process of imposing a consecutive 10-year enhancement pursuant to Penal Code section 186.22, subdivision (b)(1)(C). However, appellants counsel interrupted and indicated that because an indeterminate term (life with the possibility of parole) had been imposed on count 5, the court could not lawfully impose a Penal Code section 186.22, subdivision (b)(1) enhancement. Appellants counsel indicated that, in lieu of the enhancement, appellant was required to serve a minimum parole eligibility period of 15 years. The court replied, Okay. The court will not impose that sentence based on the provision that was just cited by [appellants counsel].

The abstract of judgment reflects, as to count 5, the following: Defendant was sentenced to State Prison for an INDETERMINATE TERM as follows: [] . . . [] 5. [Checked box] LIFE WITH THE POSSIBILITY OF PAROLE on count[] 5 [] 6. . . .

[] b. [Checked box] 25 years to Life on count[] . . . 5 . . . [] PLUS enhancement time shown above.

b. Analysis.

Appellant claims that, as to count 5, the abstract of judgment must be corrected to reflect a term of 15 years to life plus enhancements. We agree the abstract needs to be corrected as indicated below.

Fairly read, the reporters transcript reflects that, as to count 5, the court imposed a consecutive term of life with the possibility of parole, plus 25 years to life for the Penal Code section 12022.53, subdivision (d) enhancement pertaining to that count. Moreover, the reporters transcript, fairly read, reflects that the trial court, accepting the argument of appellants counsel, implicitly ordered that appellant serve a 15-year minimum parole eligibility period pursuant to Penal Code section 186.22, subdivision (b)(5). (See People v. Montes (2003) 31 Cal.4th 350, 361, fn. 14.)^[6]

On the other hand, the abstract of judgment fairly may be read to reflect that, as to count 5, the court imposed (1) a consecutive term of life with the possibility of parole and, for that count alone (apart from any enhancement), another term of 25 years to life, plus (2) a term of 25 years to life for the Penal Code section 12022.53, subdivision (d) enhancement pertaining to count 5. Moreover, the abstract does not, as to count 5, expressly refer to a Penal Code section 186.22, subdivision (b)(5) 15-year minimum parole eligibility period.

In sum, the abstract of judgment correctly reflects that as to count 5, the court imposed a consecutive term of life with the possibility of parole, plus 25 years to life for the Penal Code section 12022.53, subdivision (d) enhancement pertaining to that count. The abstract of judgment erroneously reflects that the trial court imposed a term of 25 years to life on count 5 alone (apart from the Penal Code section 12022.53, subdivision (d) enhancement). The abstract also erroneously fails to reflect that the court ordered that appellant serve a 15-year minimum parole eligibility period pursuant to Penal Code section 186.22, subdivision (b)(5). We will direct the trial court to correct the abstract of judgment accordingly.^[7]

DISPOSITION

The judgment is affirmed. The trial court is directed to forward to the Department of Corrections an amended abstract of judgment consistent with this opinion.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KITCHING, J.

We concur.

CROSKEY, Acting P.J.

ALDRICH, J.

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^[1] During jury deliberations, the jury (1) asked for clarification of a stipulation pertaining to the window falling into the door, (2) asked for a readback for clarification purposes of Quinnies testimony, including the letter to the defendant, and (3) asked whether Penal Code section 186.22, subdivision (a)(1) required that another gang member personally direct the defendant to commit the crime. The jury retired for deliberations on Thursday, October 13, 2005, and rendered verdicts on October 18, 2005.

^[2] That instruction stated: Witnesses who have special knowledge, skill, experience, training or education in a particular subject have testified to certain opinions. This type of witness is referred to as an expert witness. In determining what weight to give to any opinion expressed by an expert witness, you should consider the qualifications and believability of the witness, the facts or materials upon which each opinion is based, and the reasons for each opinion. [] An opinion is only as good as the facts and reasons on which it is based. If you find that any fact has not been proved, or has been disproved, you must consider that in determining the value of the opinion. Likewise, you must consider the strengths and weaknesses of the reasons on which it is based. [] You are not bound by an opinion. Give each opinion the weight you find it deserves. You may disregard any opinion if you find it to be unreasonable.

^[3] That instruction read: Eyewitness testimony has been received in this trial for the purpose of identifying the defendant as the perpetrator of the crimes charged. In determining the weight to be given eyewitness identification testimony, you should consider the believability of the eyewitness as well as other factors which bear upon the accuracy of the witness identification of the defendant, including, but not limited to, any of the following: [] The opportunity of the witness to observe the alleged criminal act and the perpetrator of the act; [] The stress, if any, to which the witness was subjected at the time of the observation; [] The witness ability, following the observation, to provide a description of the perpetrator of the act; [] The extent to which the defendant either fits or does not fit the description of the perpetrator previously given by the witness; [] The cross-racial or ethnic nature of the identification; [] The witness capacity to make an identification; [] Whether the witness was able to identify the alleged perpetrator in a photographic or physical lineup; [] The period of time between the alleged criminal act and the witness identification; [] Whether the witness had prior contacts with the alleged perpetrator; [] The extent to which the witness is either certain or uncertain of the identification; [] Whether the witness identification is in fact the product of his own recollection; . . . and [] Any other evidence relating to the witness ability to make an identification.

^[4] The third category (People v. Rodriguez (1998) 66 Cal.App.4th 157, 163-164 (Rodriguez)) is any murder which is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death.

^[5] This term of 25 years to life is indicated by the reference to 25L in that portion of the abstract of judgment pertaining to ENHANCEMENTS and, in particular, pertaining to the enhancement as to count 5.

^[6] Penal Code section 186.22, subdivision (b)(5), states, in relevant part, . . . any person who violates this subdivision in the commission of a felony punishable by imprisonment in the state prison for life shall not be paroled until a minimum of 15 calendar years have been served. We note the trial court expressly ordered that appellant serve such a period as to count 1.

^[7] We are confident that, following remand, the trial court will similarly correct the abstract of judgment to the extent it, as to count one, erroneously (1) reflects that the trial court sentenced appellant to prison for 25 years to life (apart from the Penal Code section 12022.53, subdivision (d) enhancement pertaining to that count), and (2) fails to reflect that the trial court ordered that appellant serve a 15-year minimum parole eligibility period pursuant to Penal Code section 186.22, subdivision (b)(5).