P. v. Scott & Gulledge

Filed 9/27/07 P. v. Scott & Gulledge CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County, Jack W. Morgan, Judge. Affirmed in part, reversed in part and remanded.

Lynda A. Romero, under appointment by the Court of Appeal, for Defendant and Appellant Malcolm Scott.

Sharon M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant Patrick Floyd Gulledge.

Edmund G. Brown, Jr., Attorney General, Dana R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Robert F. Katz, Supervising Deputy Attorney General and Robert C. Schneider for Plaintiff and Respondent.

Appellants Patrick Gulledge and Malcolm Scott appeal their convictions for first degree murder. The murder was found to have been gang related and, with respect to Gulledge, to have been a hate crime. In his brief on appeal, Gulledge contends: (1) testimony that Gulledge had told his ex-girlfriend he would rob Mexicans if he needed cash should have been excluded as more prejudicial than probative; (2) evidence of witness intimidation should have been excluded because it was not attributable to him; and (3) the trial court erred in instructing the jurors they could infer guilt from efforts to intimidate witnesses, again because the intimidation referenced was not attributable to him.

Scott argues his conviction must be reversed because (1) the jury was presented with alternate theories of guilt based on aiding and abetting murder and felony-murder in the course of aiding and abetting a robbery, and there was insufficient evidence to support a felony-murder conviction; (2) the court erred in failing to give, sua sponte, the instruction that to be an aider and abettor to felony-murder based on robbery, the defendant must join in the robbery before the victim is fatally wounded; (3) the court erred in reading the definition of implied malice; and (4) the jury was prejudiced by the in- and out-of-courtroom behavior of witnesses and trial spectators.^[1]

With respect to the issues raised in Gulledges brief, we conclude (1) the testimony concerning his statement of intent to rob Mexicans was properly admitted under Evidence Code section 352; (2) evidence of witness intimidation was properly admitted to explain the discrepancies between the statements made by numerous witnesses and their in-court testimony; and (3) the court did not err in instructing on witness intimidation.

With respect to the issues raised by Scott, we agree that the evidence did not support a finding of guilt for first degree felony-murder based on aiding and abetting a robbery. Because we further conclude that the instructions given misled the jury concerning the potential culpability for felony-murder of one who joins in a robbery after the victim has been fatally wounded, Scotts conviction cannot stand. With respect to the other contentions raised in Scotts brief, in which Gulledge joined, we agree the trial court erred in giving an implied malice instruction when implied malice was not at issue in the case, but conclude that the error was not prejudicial under the circumstances. With regard to the behavior of witnesses and trial spectators, we do not believe the trial court abused its discretion in refusing to grant a mistrial based on any improper conduct the jurors might have observed. Based on these conclusions, we reverse the judgment as to Scott only.

FACTUAL AND PROCEDURAL BACKGROUND

I

Information

Appellants were charged in a one-count information with the murder of Omar Carrillo, in violation of Penal Code section 187, subdivision (a).^[2] The information also alleged that a principal was armed with a handgun during the commission of the offense within the meaning of section 12022, subdivision (a)(1); that a principal personally and intentionally discharged the handgun causing great bodily injury and death within the meaning of section 12022.53, subdivisions (d) and (e)(1); that a principal personally and intentionally discharged the handgun within the meaning of section 12022.53, subdivisions (c) and (e)(1); and that a principal personally used a handgun within the meaning of section 12022.53, subdivision (b) and (e). It was further alleged that the offense was committed for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to promote, further and assist in criminal conduct by gang members, and that Gulledge committed the offense in violation of the hate crimes statute, section 422.75, subdivision (a).

II

Evidence at Trial

The shooting took place on September 12, 2005. The parties stipulated to the following facts. There were three bullet wounds in the victims body, two in the back and one in the chest. Three bullets were recovered from the body. They were all consistent with having been fired from a .22 caliber weapon, but no determination could be made whether they had been fired from the same gun. The coroner concluded that any one of the three bullet wounds suffered by the victim would have been independently fatal. The victims wallet was found on September 13, 2005 in an alley behind a gas station at Manchester Boulevard and Compton Avenue. Gulledge was a member of a criminal street gang called Grape Street and Scott was a member of a gang known as the Hat Gang.

During trial, three prosecution witnesses who observed the shooting -- Elsa Perez and Jacqueline and Doris Merida -- testified straightforwardly concerning their perceptions, as did the two police officers who testified. Four other witnesses -- George Diamond, Lanell and Lionesha Lewis, and Jonathan Hunt -- denied or professed not to remember statements made to the police in taped interviews.^[3] The prosecution, therefore, introduced the tapes into evidence after the witnesses were examined. The prosecution also introduced tapes of surreptitiously recorded jailhouse conversations between Scott and Gulledge and Scott and third parties. In addition, after Jameisha Tillman, Gulledges former girlfriend, denied having told her teacher that Gulledge had threatened to rob Mexicans, Jini Kilgore, the teacher, testified that Tillman had related Gulledges comments to her. Because the witnesses testimony differed in certain significant respects and none claimed to have seen the entire incident, we summarize each separately.

A

Prosecution Case

1. Elsa Perez

On September 12, 2005, between 3:15 and 4:30 p.m., Elsa Perez was driving down Compton Avenue in the area of 92nd Street. While stopped at a red light, she noticed a group of young Black men standing on the corner, laughing. One man left the group, walking toward a Hispanic man on the other side of 92nd Street. He appeared to be walking on his tip-toes and looking side to side. He was moving slowly and holding something black near his waist. Perez did not hear anything, but observed through her rearview mirror that people who had been standing in the area had begun to run. Perez made a u-turn and returned to the scene. When she returned, she saw the Hispanic man lying on the ground, face down. She went to the victim and observed him take a deep breath. He had a slight pulse. She sat with him until the ambulance and police arrived. When presented with a photographic lineup, Perez was unable to identify the man she saw tip-toeing toward the victim.^[4]

2. The Meridas

Sisters Jacqueline and Doris Merida were passengers in the back seat of a car on 92nd Street approaching Compton Avenue at the time of the incident. Jacqueline noticed a group of young Black men standing on the corner, talking. One of them separated from the group and walked toward the victim, firing a gun at him a number of times. The Meridas heard three gunshots. When the victim fell, the man flipped him over with his foot and shot him again. Jacqueline saw the victim move when he was flipped over, holding his stomach or chest. Doris did not see the victim move at all. Neither saw anyone take anything from the victims body. Both sisters next observed a second person remove a gun from his pocket, walk toward the victim, and shoot in that direction. According to the Meridas, the second man walked with a limp.^[5]

At trial, Jacqueline was unable to identify the first shooter. Doris testified Gulledge was the first shooter. At the preliminary hearing, however, she had identified Scott as the first shooter. In addition, both Jacqueline and Doris identified a third man as the first shooter when shown a photographic lineup by the police shortly after the incident. Both sisters identified the second shooter as Scott at trial and in a photographic lineup shown to them by the police.

During her testimony, Doris Merida was asked whether she had tried to disguise her appearance at the preliminary hearing. She admitted she had worn a hat. While testifying at trial, she admitted to trying to keep her face turned away from appellants and pulling her hood down. She said this was because she was afraid.

3. George Diamond

George Diamond, a neighbor and former schoolmate of Scotts and a member of Grape Street, was called and denied having told police that Scott walked with a limp and denied saying that he had seen Scott with a small black gun or a little deuce.

The prosecution played a tape of a September 20, 2005 police interview with Diamond. In the interview, Diamond stated that Scott walked with a limp and owned a gun Diamond described as a little black deuce-deuce revolver.

4. The Lewises

Lanell Lewis, a neighbor and friend of both appellants, testified she was at home when the shooting occurred. She heard four gunshots. She denied having told police that she was standing with appellants and another man prior to the shooting. She admitted telling the police that Gulledge shot the victim, but said she did so because Scotts mother, Denise Jackson, and Scotts brother, John Rock, asked her to relate that version of events. She later went back to the police station to deny having seen anything. Lanell either denied telling or could not remember whether she told police that Gulledge had said Where you from and F Mexican[s], F Mexican[s] before shooting Carrillo; that Gulledge took something out of the victims pocket; that after Carrillo was shot, Gulledge ran away holding a small, black gun; or that the next day, Gulledge asked her whether Carrillo was dead and she told Gulledge to turn himself in.

The prosecutor showed Lanell a photograph of a man wearing a t-shirt containing the words Snitches get Stitches.^[6] Lanell denied having seen the man before.

Lionesha Lewis, Lanells cousin, testified that on the day in question, she heard four gunshots while standing in the backyard of a friends house. She denied or did not remember telling the police that she was in the front yard at the time; that Gulledge shot Carrillo multiple times after asking him where he was from; that Gulledge had tried to take the victims wallet before shooting him; or that Gulledge went through the victims pockets after shooting him. She denied giving the police a description of a gun or saying she had seen Gulledge with it many times. In testimony similar to Lanells, Lionesha claimed that Scotts mother convinced her to lie to the police in order to support Scott, who had already been arrested for the crime, and that she had returned to the police station in an attempt to retract her story a few days after being interviewed.

Lionesha admitted believing something bad could happen to a snitch. She claimed to have observed Scotts mother threaten Lanell in the hallway during the trial.

The prosecution played a tape of the September 22, 2005 police interview of the Lewises. At that time, Lanell stated she was in front of an apartment building across the street from where the shooting occurred with a group of people, including Gulledge. Gulledge walked away from the group without saying anything to them. As he approached Carrillo, he asked the victim where he was from and said F-Mexican[s], F-Mexican[s] before shooting him.^[7] There were four gunshots. Gulledges gun was a small black revolver. Gulledge took money out of the victims pocket before running away. Lanell denied that Scott had a gun or that he was otherwise involved. Lanell saw Gulledge a few days later. Gulledge asked her if Carrillo had died, and Lanell informed Gulledge that Carrillo had died and told Gulledge he should turn himself in.

On the same interview tape, Lionesha said she was standing in front of her friends house when she heard shots. She moved closer and saw Gulledge shoot the victim while he was lying on the ground. Prior to that, Gulledge asked Carrillo where he was from.^[8] After shooting Carrillo, Gulledge tried to rob him, but the victim pushed him away. Gulledge shot him again and took a $20 bill from his pocket before running away. Gulledges gun was a black revolver. Lionesha denied seeing Scott with a gun.

5. Jonathan Hunt

Jonathan Hunt, Scotts 14-year old brother, also talked to the police about the incident but claimed at trial not to remember what he had said. He specifically denied telling the police he had seen Gulledge crossing the street just before the victim was shot. He denied knowing who Gulledge was. He also denied telling the Lewises what to say to the police.

In a taped interview that also took place on September 22, 2005, Hunt stated that while on his way to the store, he observed Gulledge crossing the street toward the victim. Hunt heard the shooting from inside the store. He went outside and saw the victim lying on the ground. He did not see either Gulledge or Scott with a gun.

6. Jameisha Tillman and Jini Kilgore

Jameisha Tillman testified she was Gulledges girlfriend in August 2005. She was financially supporting him at the time. She denied telling her teacher, Jini Kilgore, that Gulledge threatened to rob Mexicans to support himself if Tillman refused to give him money.

Jini Kilgore, a teacher at Tillmans school, testified over defense objection that in August 2005, Tillman said Gulledge threatened to rob Mexicans to support himself if Tillman did not give him money.

7. Appellants Taped Conversations

The prosecution introduced tapes of two conversations between Scott and Gulledge and two conversations between Scott and third parties, recorded while appellants were in custody.^[9]In one involving Scott and a third party, Scott said he had told police he was with his uncle at the time of the shooting. In the second, Scott asked the third party to tell his mother that he had told the police he was with his uncle and that they had gone to Sizzlers and the DMV.

In one of the conversations between Scott and Gulledge, Gulledge said: [I]f that was them snitching on (inaudible) then we show them. If they keep thinking that Im like that I am giving them a chance (inaudible). I just dont want to do that -- it[]s not worth it. . . . Man, fuck the snitch. Thats why Im much bigger than you. After several inaudible comments, Gulledge added: Boom! (inaudible) Because when you back home its over -- its over. I am not playing no more. In the second, Gulledge referred to Goo-Goo -- Lanells nickname -- and said: [O]ne of my homies came to court and shit. [So now,] [t]hey fitting like that the homies threatened her and she changed her story . . . Somehow I got to convince the jury that the homies didnt threaten her . . . . He also referred to hom[ies] being eight deep in the courtroom and Snitch Block Crip being [e]verywhere, everywhere. Scott referred to the homies in the courtroom as [t]atted up. Gulledge described them as fresh out the pen. Gulledge said [t]hey [referring to the homies in the courtroom] didnt say nothing to them and Scott responded: But, that was their plan, though. Because remember when I said that shit happened before that, though? Somebody had to get on them before that though, you know what I mean? In addition, Gulledge related a conversation he had heard about between someone called Rabbit and a third party Gulledge referred to as a [b]itch. The third party had reportedly said I aint no snitch and then Rabbit had said so what you talk to the police when they asked you about Pat?^[10]

8. Police Officers Testimony

Los Angeles Police Department (LAPD) officer Roberto Bourbois testified as a gang expert. He stated that Grape Street is a street gang, having 800 to 1500 members. They use sign and symbols such as a drawing of a bunch of grapes or the number 103 to signify 103rd Street or the letters G ST. They have a hand sign and tendency to wear purple. Grape Street was formerly known as Watts Baby Loco Crips, so they sometimes use the initials WBLC. The primary activities of the gang are robberies, burglaries, shootings, narcotics sales and murders. Officer Bourbois identified two Grape Street gang members who had been convicted of robbery in 2004.

The Carrillo shooting was committed within the area claimed by Grape Street. Grape Street is allied with the 89 East Coast Crips and the Hat Gang. The 89 East Coast Crips are feuding over certain streets in the area with Florencia, a Hispanic gang. In a feud, members of rival gangs are expected to kill one another on sight. Sometimes innocent people in the neighborhood are also targeted merely for being the wrong race. Crimes, particularly murders, are committed to increase a gang members status.

Officer Bourbois was familiar with the term snitching which refers to being an informant. Snitching is considered a serious offense to a gang, to be paid back with physical injury or death. Witness intimidation is important to the functioning of a gang because it permits a gang to operate openly, without impediment. Gangs sometimes use graffiti to intimidate witnesses.

The prosecution introduced photographs of graffiti seen by Officer Bourbois in 2005 in the area of the shooting. One had a picture of a crossed out flower representing Florencia and the words Fucc em and GST Watts.^[11] A second photograph depicted graffiti saying Fucc all Surrats and Mexicans.^[12] Other graffiti in the area said race war.

Officer Bourbois expressed the opinion that the Carrillo shooting benefited the gang because it warned Hispanic men to stay away from the area and sent a message to the community that the gang believed it could commit any crime at any time without fear of being identified or prosecuted.

LAPD detective John Skaggs testified that from the marks on the victims clothing, it was apparent he was shot from close range. A search of Gulledges residence uncovered a .22 caliber bullet. After hearing the taped conversations between appellants, Detective Skaggs returned to the area and observed graffiti that said Snitch Blocc.^[13]

B

Defense Case

Denise Jackson, the mother of Scott and Hunt, testified she was out of town on the day of the shooting. After Scott was arrested, the Lewises told her what happened and assured her Scott had nothing to do with it. Jackson told police that the Lewises had seen the shooting. The Lewises agreed to talk to the police, so Jackson drove them to the station. Jackson observed the Snitch Blocc graffiti on the wall next to her house after she took the Lewises to talk to the police and believed it was directed at her family. She denied attempting to influence the Lewises testimony or their statements to the police.

C

Instructions and Closing Argument

The prosecutor argued in closing that there were two ways the jury could reach a finding of first degree murder -- by finding that the killing was premeditated or by finding that the killing took place during the commission of a robbery. With respect to Scott, the prosecutor argued he was an aider and abetter to the killing, explaining that although you received the stipulation that it couldnt be determined which bullet was the one that hit the victim or if there were bullets from different guns, . . . [w]e know that the shots that entered the victim or . . . caused the bullet holes in the clothing were fired at close range . . . because of the gunpowder that is around the bullet hole[s]. And so its not likely that any of those shots were fired by [Scott] given what you know about the evidence where [Scott] was when he was firing in the middle of the street. The prosecutor described Scotts role as someone who helps possibly the main perpetrator to get away or someone who is trying to scare away potential witnesses.

The jury instructions given included the following: CALJIC No. 2.06 concerning the inference to be drawn from an attempt to intimidate a witness; CALJIC No. 8.21.1, stating that a robbery remains in progress for purposes of felony-murder until the perpetrator has eluded pursuers and reached a place of temporary safety; and CALJIC No. 9.40.1, stating that for purposes of determining whether a person is guilty of aiding or abetting a robbery, a robbery continues so long as the stolen property is being carried away to place of temporary safety. The jury was also given a number of instructions on first and second degree murder and first degree felony-murder, as well as CALJIC No. 8.11, the definition of malice.

The defense objected to No. 2.06 and No. 8.21.1. Scott objected to No. 9.40.1.

D

Non-evidentiary Matters

On the first day of trial, two jurors informed the court that one man and two women seemed to have been following them during the noon break. The jurors recognized the three people as having been in the courtroom earlier.^[14] The man tried to engage the jurors in conversation and stated to his companions within earshot of the jurors that appellants were innocent. One of the jurors told the man they could not speak to anyone involved in the case. There were no other jurors involved in the incident. The court dismissed the two jurors, but denied a defense motion for a mistrial. Two alternates took the places of the dismissed jurors.

During the trial, Gulledges mother was observed by the bailiff, the court clerk, and three jurors making a gesture with her hand that resembled firing a handgun into her head. Some jurors, including those who had heard about the incident, told the bailiff they felt intimidated by her actions. The judge ordered her excluded from the courtroom and interviewed the three jurors who had observed the conduct. All three stated they could decide the case fairly. The court convened the rest of the jurors and asked if any felt they could not be fair based on what they had heard about the incident. None responded affirmatively. The court admonished the entire jury to disregard the conduct and judge the case based on the facts and the law. The defense moved for a mistrial, which the court denied.

E

Verdict and Sentencing

The jury found both appellants guilty of first degree murder. It also found the special allegations true as to Gulledge. With respect to Scott, the jury found not true that he personally and intentionally discharged a firearm . . . which proximately caused death to Omar Carrillo. All other special allegations were found true, including that Scott, in the commission and attempted commission of [the murder], . . . personally and intentionally discharged a firearm . . . .

I

Gulledges Appeal

A

Kilgore Testimony

Gulledge contends the trial court erred in admitting Kilgores testimony impeaching Tillmans denial that Gulledge had told her he would rob Mexicans if Tillman refused to provide him with financial support. At the time the prosecution announced its intention to call Kilgore and introduce the testimony, Gulledge objected under Evidence Code section 352 and on the ground that the proposed testimony constituted improper propensity evidence. Gulledge raises these same arguments on appeal.

Evidence is subject to exclusion under Evidence Code section 352 if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. [E]vidence is probative if it is material, relevant, and necessary. [H]ow much probative value proffered evidence has depends upon the extent to which it tends to prove an issue by logic and reasonable inference (degree of relevancy), the importance of the issue to the case (degree of materiality), and the necessity of proving the issue by means of this particular piece of evidence (degree of necessity). (People v. Thompson (1980) 27 Cal.3d 303, 318, fn. 20.) A trial courts broad discretion in determining whether to admit or exclude evidence under Evidence Code section 352 will not be overturned absent an abuse of that discretion. (People v. Minifie (1996) 13 Cal.4th 1055, 1070.)

The Kilgore testimony was relevant to the charged violation of section 422.75, which imposes an additional prison term on a person who commits a felonious hate crime. A hate crime is defined by section 422.55 as a criminal act committed, in whole or in part, because of one or more of the following actual or perceived characteristics of the victim: (1) Disability. (2) Gender. (3) Nationality. (4) Race or ethnicity. (5) Religion. (6) Sexual orientation. (7) Association with a person or group with one or more of these actual or perceived characteristics. In People v. Superior Court (Aishman) (1995) 10 Cal.4th 735, the court explained that properly interpreted, because of means the bias motivation must have been a cause in fact of the offense, and when multiple concurrent causes exist, the bias motivation must have been a substantial factor in bringing about the offense. (10 Cal.4th at p. 741.)

The trial court did not abuse its discretion in overruling Gulledges Evidence Code section 352 objection. The evidence was highly relevant and material as it was probative of Gulledges motivation for attacking Carrillo because of his race. The evidence was also necessary. Although racial animus in support of the hate crime charge was introduced through Lanells statement to police officers that immediately before the shooting Gulledge yelled F Mexicans or Fuck Mexicans, at trial Lanell denied having heard that remark. The only other evidence of racial motivation was the expert testimony concerning the basis for the animosity between Florencia and it rivals and the evidence of anti-Hispanic graffiti in the area, but that testimony did not directly establish Gulledges personal motivation, which the jury might otherwise have believed was entirely gang-related.

Gulledge contends the Kilgore testimony suggested to the jury that he had committed an uncharged offense and was improperly admitted to show propensity to commit the charged offense. Preliminarily, we disagree that the evidence implied Gulledge had committed an uncharged offense. The statement that he would rob Mexicans if he needed funds was indicative of a future plan, not a past action. As far as the evidence showed, the robbery-murder of Carrillo was the first time Gulledge had acted in accordance with his announced plan. Moreover, evidence of the commission of uncharged offenses is admissible under the appropriate circumstances, despite the possibility of unduly prejudicing the jury. (See, e.g., People v. Tapia (1994) 25 Cal.App.4th 984, 1020-1023.) Evidence that a defendant committed crimes other than those for which he is on trial is admissible when it is logically, naturally, and by reasonable inference relevant to prove some fact at issue, such as motive, intent, preparation or identity. (People v. Daniels (1991) 52 Cal.3d 815, 856.) Here, the evidence established Gulledges motive for committing the crime and was therefore properly admitted after the trial court found its probative value outweighed the possibility of undue prejudice. Accordingly, we reject Gulledges contention that the testimony was improperly admitted under Evidence Code section 352 or that it constituted improper propensity evidence.

B

Evidence of Witness Intimidation

Gulledge contends that evidence of witness intimidation not attributable to him should not have been admitted by the court. Gulledge points primarily to the photograph of Alfred Adams, who appeared at the preliminary hearing wearing a t-shirt containing the words Snitches get Stitches. In support of his contention, Gulledge avers that evidence of witness intimidation was offered solely to prove that the Lewises had recanted their earlier statements as a result of having been intimidated, and that the evidence had no bearing on this point because (1) Adams appeared in the t-shirt at the preliminary hearing by which time the Lewises had already recanted and (2) Lanell denied having seen Adam.

We disagree with Gulledges assessment of the significance of the evidence of intimidation. Five witnesses who provided information vital to the prosecution -- not just the Lewises -- later recanted. In order to find appellants guilty, the jury had to credit the witnesses original statements rather than their later testimony. Evidence of intimidation explained why so many were reluctant to identify appellants under oath or otherwise publicly assist the authorities. It was not necessary to show threats against the witness were made by the defendant personally, or that the witnesss fear of retaliation [was] directly linked to the defendant for the evidence to be admissible. (People v. Gutierrez (1994) 23 Cal.App.4th 1576.) Although the witnesses had already recanted by the date of the preliminary hearing, the jury reasonably could have believed that Adamss presence dissuaded them from returning to their original stories. Moreover, the fact that a fellow gang member had the effrontery to appear in court wearing a threatening t-shirt bolstered the prosecutions theory that people in gang areas live in an atmosphere where threats and intimidation are commonplace. This theory was further supported by Officer Bourboiss expert testimony that gang members practice witness intimidation as a matter of course, and by the Snitch Blocc graffiti that appeared in the area after Jackson persuaded the Lewises to go to the police. In sum, there is no basis for Gulledges theory that the evidence of witness intimidation served no purpose but to prejudice the jury. The evidence was relevant to an important issue in the case and properly admitted for that purpose.

C

Instruction Regarding Inference Arising from Witness Intimidation

Gulledge argues that regardless of whether the evidence of intimidation was properly admitted, the jurors should not have been instructed in accordance with CALJIC No. 2.06 that if they found a defendant attempted to suppress evidence against himself in any manner, such as by intimidation of a witness, this attempt may be considered . . . as a circumstance tending to show consciousness of guilt.^[15] He contends that there was not a shred of evidence that [he] took any action, whatsoever, to intimidate any witness. (See People v. Valdez (2004) 32 Cal.4th 73, 137, quoting People v. Hannon (1977) 19 Cal.3d 588, 597 [It is an elementary principle of law that before a jury can be instructed that it may draw a particular inference, evidence must appear in the record which, if believed by the jury[,] will support the suggested inference.].) Conceding that the recorded jail conversations between appellants show that he was aware that intimidation was ongoing, Gulledge maintains it is . . . apparent that he lacked control over what his homies did while he was incarcerated.

Evidence of the attempt of third persons to suppress testimony is admissible against a defendant where the defendant has authorized the attempt of the third person to suppress testimony . . . . (People v. Williams (1997) 16 Cal.4th 153, 200.) Contrary to Gulledges assertion, it is by no means apparent that he lacked control over efforts to dissuade prosecution witnesses from testifying. It is uncontested that Adams, like Gulledge, was a Grape Street gang member, as were the other intimidating figures who showed up at the preliminary hearing tatted up and eight deep. Gulledges and Scotts taped conversations make clear that they were in contact with associates on the outside, as evidenced by Gulledges knowledge that the Snitch Blocc graffiti was everywhere -- something he could not have known first-hand. Moreover, on the tapes Gulledge referred to snitching, saying if that was them snitching on (inaudible) then we show them and fuck the snitch, followed shortly thereafter by Boom! . . . Because when you back at home its over -- its over. I am not playing no more. The evidence permitted an inference that Gulledge was more than simply aware of his associates efforts to intimidate witnesses and that through his ongoing contact with fellow gang members, he was encouraging the efforts of such members to dissuade witnesses from giving incriminating testimony. On this record, the trial judge did not err in giving CALJIC NO. 2.06.

II

Scotts Appeal

A

Felony-Murder

Because the prosecutor conceded the evidence did not support the conclusion that Scott personally shot Carrillo and the jury specifically found not true the allegation that Scott personally used a firearm which caused Carrillos death, Scotts conviction for simple murder could properly have been based only on his status as an aider and abettor.^[16] (See People v. Celis (2006) 141 Cal.App.4th 466, 473-474.) Scott contends that the evidence did not support his conviction for felony-murder as an aider and abettor of a robbery -- one of the two alternate bases presented to the jury for finding him guilty of Carrillos murder -- and that because the jurors could have based their verdict on an unsupported theory, his conviction must be reversed. We agree.

Scotts contention is based on the distinction between the evidentiary support necessary for the jury to find a defendant guilty of murder under an aider and abettor theory and the support necessary to find a defendant guilty of felony-murder based on aiding and abetting a robbery. In a simple murder case, . . . a person may aid and abet a murder after the fatal blow is struck as long as the aiding and abetting occurs before the victim dies. (People v. Celis, supra, 141 Cal.App.4th at pp. 473-474.) The defendant in Celis argued that it would have been error for the jury to have convicted her based on her conduct . . . after [the principal] had delivered the fatal blow . . . , but before [the victim] died. (Id. at p. 471.) The court disagreed: Because the victims death is a sine qua non of murder, the crime could not have been complete until [the victim[] died. [A] murder ends with the death of the victim. (Ibid., quoting People v. Esquivel (1994) 28 Cal.App.4th 1386, 1397.)

Because the crime of murder is not complete until the victim is dead, a person who helps the principal to escape or otherwise facilitates or supports the crime while the victim lays dying can be guilty of simple murder under an aiding and abetting theory. The same is not true when the theory is felony-murder based on aiding and abetting a robbery. There is no question that a person may be guilty as an aider and abettor to the robbery itself, as long as he or she facilitates or encourages the crime before the principal arrives at a place of temporary safety with the stolen goods. (People v. Cooper (1991) 53 Cal.3d 1158, 1165-1166.) However, California courts have consistently stated that if the design to take property from the victim is formed after the victim had already been killed or mortally wounded, the felony-murder doctrine does not apply. (People v. Esquivel, supra, 28 Cal.App.4th 1386, 1396.) [T]he existence of [the requisite] intent [to join in the felony] is not measured at the time of the victims death but at the time of the acts that caused the death. (People v. Anderson (2006) 141 Cal.App.4th 430, 446.) Thus, if the defendant did not decide to take the victims money until he had been mortally wounded[,] . . . her participation in the killing was not a felony murder. (Id. at p. 447.) In addition, where one person kills in the perpetration of a robbery, and another person thereafter aids and abets the robber in the asportation and securing of the property taken, the second person is not guilty under a felony-murder theory. (People v. Pulido (1997) 15 Cal.4th 713, 716.) Similarly, where the principal pulls out a gun and shoots the victim, then suggests to a second person that they take the victims property, the second person is not guilty of felony-murder. (People v. Esquivel, supra, at pp. 1394-1395.)

The Supreme Court held in People v. Pulido, supra, that the trial court must give an appropriate instruction to prevent jurors from mistakenly convicting a defendant of felony-murder where the evidence is unclear whether he or she joined in the robbery before the victim was fatally wounded. (15 Cal.4th at pp. 728-729.) Such an instruction can be found in CALJIC No. 8.27 which states: In order to be guilty of murder, as an aider and abettor to a felony murder, the accused and the killer must have been jointly engaged in the commission of the [felony] at the time the fatal [blow was struck] [wound was inflicted]. The instruction must be given by the court sua sponte where the facts warrant it. (People v. Esquivel, supra, 28 Cal.App.4th at pp. 1398-1399.)

Although Scott contends that the court erred in failing to give CALJIC No. 8.27, the real error was in giving the jury instructions that permitted it to find Scott guilty of felony-murder for aiding and abetting the robbery of Carrillo where substantial evidence did not support that theory. The evidence presented established that the first shooter (Gulledge) fired three fatal shots before the second shooter (Scott) acted. Because Gulledge had not yet reached a place of temporary safety with the stolen cash when Scott joined in, Scott could properly have been found guilty of robbery as an aider and abettor. (People v. Cooper, supra, 53 Cal.3d at pp. 1165-1166.) Because the evidence was that Carrillo was alive when Scott acted, Scott could properly have been found guilty of murder as an aider and abettor. (People v. Celis, supra, 141 Cal.App.4th at pp. 473-474.) However, because there was no evidence Scott was jointly engaged in the commission of the robbery when Gulledge fired the fatal shots, the jury could not properly have found Scott guilty of felony-murder for aiding and abetting the robbery.^[17]

Respondent urges us to interpret the prosecutors closing argument as encouraging the jury to find only that Scott aided and abetted the murder, not the robbery. We do not find the argument susceptible to such an interpretation. Moreover, however we interpret the argument of counsel, the instructions given were clear. The jury was informed that Scott could be found guilty of murder if the killing occurred during the commission or attempted commission of robbery; that the unlawful killing of a human being . . . which occurs during the commission or attempted commission of the crime of robbery is murder of the first degree when the perpetrat[or] had the specific intent to commit that crime; that a killing occurs during the commission or attempted commission of a felony, so long as the fatal blow is struck during its course, even if death does not then result; and that [f]or the purposes of determining whether an unlawful killing has occurred during the commission or attempted commission of a robbery . . . [a] robbery is complete when the perpetrator has eluded any pursuers, has reached a place of temporary safety, and is in unchallenged possession of the stolen property after having effected an escape with the property. The jury was also specifically told in an instruction applicable only to Scott: For purposes of determining whether a person is guilty as an aider and abettor to robbery, the commission of the crime of robbery is not confined to a fixed place or a limited period of time and continues so long as the stolen property is being carried away to a place of temporary safety. As the Supreme Court said in People v. Pulido, such instructions could well suggest to a jury that a person who aids and abets only in the asportation phase of robbery, after the killing is complete, is nonetheless guilty of first degree murder under the felony-murder rule . . . [T]hat implication would be incorrect. (15 Cal.4th at p. 728.)

Because the jury was instructed that it could find Scott guilty of felony-murder if he aided and abetted the robbery, without the further clarification that Scott must have been jointly engaged in the robbery prior to the time Gulledge fired the fatal shots, the remaining question is whether the conviction can stand. Respondent contends there was sufficient evidence to find Scott guilty as an aider and abettor to murder. We agree. By firing when he did, Scott dissuaded anyone from going to Carrillos aid or attempting to prevent Gulledges escape. Perez testified that Carrillo was still alive when she arrived back at the scene, after both shooters had fled. However, sufficient evidence is not the applicable standard. [W]hen the prosecution presents its case to the jury on alternate theories, some of which are legally correct and others legally incorrect, and the reviewing court cannot determine from the record on which theory the ensuing general verdict of guilt rested, the conviction cannot stand. (People v. Guiton (1993) 4 Cal.4th 1116, 1122, quoting People v. Green (1980) 27 Cal.3d 1, 69.) Here, not only was the prosecutions felony-murder theory factually unsupported with respect to Scott, but the jury was given instructions that encouraged it to believe the law permitted a finding of guilt for felony-murder on the facts presented. Moreover, the alternative aiding and abetting murder theory was not given any particular emphasis in the instructions, in the prosecutors argument, or in the presentation of evidence. Accordingly, we cannot conclude that the jury verdict rested on the aiding and abetting murder theory. Scotts conviction must, therefore, be reversed.

B

Implied Malice Instruction^[18]

Gulledge joins in Scotts contention that the trial court erred in including in its instructions the definition of implied malice contained in CALJIC No. 8.11 without informing the jury implied malice had no application to first degree murder.^[19] As respondent points out, however, the court also gave CALJIC No. 8.20, which explains that [a]ll murder which is perpetrated by any kind of willful, deliberate and premeditated killing with express malice aforethought is murder of the first degree. (Italics added.)^[20] Thus, the jury was properly informed that premeditated murder required express malice. The error committed, therefore, was giving an instruction that had no apparent bearing on the case.^[21]

[A]lthough it is error for a trial court to give an abstract instruction which is correct in law but irrelevant to the case, this is generally deemed only a nonprejudicial technical error which does not constitute grounds for reversal. (People v. Dieguez (2001) 89 Cal.App.4th 266, 277.) An abstract instruction is considered prejudicial only if there is a reasonable likelihood that the instruction confused the jury. (People v. Rowland (1992) 4 Cal.4th 238, 282.) No such likelihood appears on this record. As noted, the court properly instructed the jury that first degree murder required a finding of express malice, and provided a definition of that term. Accordingly, there was no danger of confusion.

C

Jury Prejudice

Finally, Gulledge joins in Scotts contention that they were denied a fair and unbiased jury because the jury was intimidated by (1) the out-of-courtroom incident involving Bennett and the Lewises; (2) the in-courtroom behavior of Gulledges mother; (3) the evidence presented by the prosecution of witness intimidation; and (4) the behavior of Doris Merida in attempting to hide her face while testifying. With respect to the apparent attempt of Bennett and the Lewises to influence the jurors, the record is clear that only two jurors observed the behavior and both were dismissed by the court. There is no evidence that any other juror was aware of the incident or had any knowledge concerning why the two jurors were dismissed. The incident could have had no impact on the verdict rendered.

The action of Gulledges mother in pretending to shoot herself in the head was witnessed by three jurors and apparently other jurors became aware of the incident when it was reported to the bailiff. Her action apparently had an impact on some of the jurors, as they brought it to the courts attention. However, on inquiry by the court, all of the jurors confirmed it would have no effect on their ability to judge appellants fairly. While it is true that misconduct on the part of a spectator [can] constitute[] ground for a mistrial if the misconduct is of such character as to prejudice the defendant or influence the verdict, the trial court has a large measure of discretion in determining whether the conduct of a spectator is of such nature as to produce prejudice. (People v. Slocum (1975) 52 Cal.App.3d 867, 884.) A motion for a mistrial may properly be refused where the court is satisfied that no injustice has resulted or will result from the events of which the complaint ensues. (Ibid.; accord People v. Haskett (1982) 30 Cal.3d 841, 854 [Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions].) Here, after dealing with the misbehaving spectator, the trial court questioned each of the jurors, concluded that the incident had not unduly prejudiced them, and admonished them to ignore it in undertaking their duties. We perceive no basis for finding the court abused its discretion in rejecting the defense motion for a mistrial.

With respect to the prosecutorial evidence of witness intimidation, as discussed above, such evidence was relevant to address why numerous witnesses had changed their stories concerning appellants involvement in the crime and had denied seeing anything when questioned under oath. Although there was a possibility of undue prejudice, for the reasons discussed, on balance the probative value of the evidence outweighed the potential prejudice. The same is true with regard to Doris Meridas attempts to avoid appellants view. The prosecutor was entitled to ask questions concerning her behavior on the witness stand and to assist the jury in understanding her frame of mind in order to assess her credibility. (See People v. Olguin (1994) 31 Cal.App.4th 1355, 1369 [[T]he fact a witness is testifying despite fear of recrimination is important to fully evaluating his or her credibility.].) Moreover, defense counsel did not object at the time or ask that the jury be admonished to disregard Doriss fears to the extent they were unreasonable. Thus, any objection was waived.

DISPOSITION

Scotts conviction is reversed. In all other respects, the judgment is affirmed. The matter is remanded for a new trial as to Scott only.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MANELLA, J.

We concur:

EPSTEIN, P. J.

SUZUKAWA, J.

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^[1] Gulledge joins in arguments (3) and (4).

^[2] Unless otherwise indicated, statutory references herein are to the Penal Code.

^[3] Because they share the same last name, Lanell and Lionesha Lewis will be referred to by their first names, as will Jacqueline and Doris Merida.

^[4] In court, she testified, contrary to the prosecutions theory, that the man looked like Scott.

^[5] At the time of Scotts arrest, he had a limp.

^[6] The man was later identified as Alfred Adams, a member of Grape Street; the photograph was taken at the preliminary hearing, at which Lanell testified.

^[7] She later clarified that Gulledge had actually said Fuck Mexicans.

^[8] Lionesha contradicted herself later in the interview, saying she did not hear Gulledge say anything.

^[9] The Scott-Gulledge conversations were recorded on the day of the preliminary hearing.

^[10] Gulledges first name is Patrick.

^[11] Officer Bourbois pointed out that Crips do not use the letters CK together because that stands for Crip Killer.

^[12] The officer explained that surrats is a disrespectful form of surrano, a term for a Hispanic gang member from southern California.

^[13] The words Snitch Blocc are intended as an insult to the people on a particular block and a statement that someone there is informing.

^[14] The individuals were later identified as the Lewises and Tossie Bennett, their cousin. Questioned by the court, the three denied attempting to speak with the jurors.

^[15] The instruction given reads as follows: If you find that a defendant attempted to suppress evidence against himself[] in any manner, such as by the intimidation of a witness, this attempt may be considered by you as a circumstance tending to show a consciousness of guilt. However, this conduct is not sufficient by itself to prove guilt, and its weight and significance, if any, are for you to decide.

^[16] [A] person aids and abets the commission of a crime when he or she, acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime. (People v. Beeman (1984) 35 Cal.3d 547, 561.) An aider and abettor is chargeable as a principal. (People v. Sully (1991) 53 Cal.3d 1195, 1227.)

^[17] Respondent notes that the group of men observed by Perez were laughing before Gulledge left to begin his attack on Carrillo and contends this suggests that the entire group was aware of Gulledges intent, which was not too difficult to infer, considering he had a gun in his hand, and the group was encouraging him with its laughter. Even assuming the laughter was intended as encouragement to Gulledge to assault Carrillo, there is no evidence that any of the group was aware of Gulledges intent to rob him.

^[18] Although our conclusion with respect to Scott renders his alternate arguments moot, we are obliged to discuss these contentions because Gulledge joined in asserting them.

^[19] CALJIC No. 8.11 contains the definition of both express malice and implied malice.