P.  v. Washington

Filed 2/20/07  P.  v. Washington CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

 IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

                        Appellants Glenn Washington and Clarence McKeithan were tried jointly before two separate juries.  They were convicted of two counts of attempted premeditated murder.  (Pen. Code, §§  664, 187.)[1]  Washington also was convicted of one count of first degree murder (§  187) and one count of conspiracy to commit murder.  (§§  182, 187.)  McKeithan was convicted of two additional counts of attempted premeditated murder (§§  664, 187) and one count of carrying a loaded firearm (§  12031, subd. (a)(1)).  Firearm and gang enhancement allegations were found true.  (§§  186.22, subd. (b), 12022.53, subds. (b)-(e).) 

                        Washington was sentenced to four consecutive life terms plus firearm and gang enhancements.  (§§  186.22, subd. (b)(1), 12022.53, subd. (d).)

                        McKeithan received a determinate sentence of 25 years and an indeterminate sentence of 135 years to life plus firearm and gang enhancements.

                        Appellants claim the judgment must be reversed because there is insufficient evidence to support the gang enhancements, the trial court erred in failing to give various instructions, the prosecutor made improper remarks while questioning a witness and in his closing statement, and the trial court made various sentencing errors.

                        We conclude the trial court erred in sentencing but otherwise affirm the judgments of conviction.

FACTS AND PROCEDURAL HISTORY

Prosecution Evidence

                        Appellants are members of a criminal street gang known as the Tragniew Park Crips (TPC).  TPC claimed territory adjacent to that of the Nutty Block Crips.  Beginning in March 2005, the two gangs began an extended gang war following the shooting deaths of several members.

1.  The May 20, 2005, Attempted Murder of Marquis Smith (Count 3)[2]

                        At about 10:00 p.m., on May 20, 2005, 15-year-old Marquis Smith was playing basketball with several people in Nutty Block territory on South Harlan Avenue in Los Angeles.  Two men approached on foot and started shooting.  Smith was shot in his side, near his right hip.  He spent two weeks recovering in the hospital.  After the shooting, the two men ran away, laughing, and got into the backseat of a waiting Chevrolet Caprice, owned by Washington.

                        Bullet fragments were recovered at the scene.  A ballistic analysis showed that the bullets were fired from two different guns.  The bullet that struck Smith was fired from a .357 caliber revolver similar to that possessed by Washington.  Other bullet fragments recovered at the scene were from a .32 caliber revolver similar to that possessed by McKeithan.

                        Jata Goldsberry heard the gunshots and saw two men crossing the street.  He identified McKeithan as one of the men.  He saw them get into the Caprice and drive away.

2.  The May 23, 2005, Conspiracy (Count 4)

                        Three days later, a third TPC member, who was a close friend of Washington, was shot and killed.  In a statement given to police following his arrest, Washington said he was upset about the shooting and that evening drove his Caprice into Nutty Block territory with two other TPC members looking for rival gang members to shoot.  They were unsuccessful and drove home.

3.  The May 24, 2005, Attempted Murder of Jata Goldsberry (Count 2)

                        Early the next morning, Goldsberry was outside his residence talking with his mother and a third person.  McKeithan walked toward the group, knelt down and fired more than nine rounds.  No one was struck.

                        Goldsberry saw McKeithan get into Washington's Caprice and drive away.  The following morning, Goldsberry found a note on his truck, which said:  " Testify, everybody die."

4.  The May 24, 2005, Murder of Donte Smith (Count 1)

                        Later that morning, Washington drove back to Nutty Block territory, looking for a Nutty Block Crip to shoot.  Washington spotted Donte Smith and said to another gang member in his car, " There's one of the Nasties [Nutty Block Crips] right there."

                        Witnesses saw a man get out of Washington's Caprice and run toward Smith firing a handgun.  The gun had white track tape around it.  Smith was chased by the gunman as he attempted to flee.  He fell to the ground and the gunman continued firing.  The gunman then ran back and got into Washington's car.

                        Smith suffered six gunshot wounds.  Two of the wounds were in the back, perforating his heart and lung, and were fatal.  There was stippling around those wounds, indicating that the shots were fired from 18 to 24 inches away.  Four .45 caliber bullets were recovered from his body.

5.  The June 6, 2005, Attempted Murders of Patrick Hodge and Samuel Williams (Counts 5 and 6)

                        On June 6, 2005, at approximately 10:00 p.m., 16-year-old Patrick Hodge and 15-year-old Samuel Williams were walking near the intersection of Alondra and Central Avenues in Compton.  Two men, one of whom was identified as McKeithan, approached Hodge and Williams and asked, " [W]here are you from?"   The question was meant to elicit information about gang membership. 

                        One of the men said, " Fuck Nastys," a derogatory term for the Nutty Block Crips.  When Hodge replied that he was not a member of that gang, one of the gunmen said, " This [is] Tragniew Park."   As Hodge and Williams walked away, McKeithan and his companion began shooting.  Hodge was struck in the leg and right heel and Williams escaped injury.

6.  The July 20, 2005, Carrying a Loaded Firearm (Count 7)

                        On July 20, 2005, Deputy Richardson saw McKeithan walking in the area of Corydon and Amantha Streets in Los Angeles.  When McKeithan saw the deputy, he ran away and jumped a fence.  The deputy saw a black gun in his hand.  The deputy later found McKeithan at a nearby house, lying on a couch, and found a loaded .38 caliber semiautomatic in a bedroom.

7.  Other Evidence

                        On June 23, 2005, following Washington's arrest, deputies searched his Caprice.  The deputies found a live .32 caliber bullet lodged in the back seat.  The bullet was the same type that deputies found in McKeithan's .32 caliber revolver.  The bullet that struck Marquis Smith was fired from a similar gun.

                        Deputies found a page of rap lyrics in Washington's jail cell.  The lyrics were written in a code used by TPC and described a killing similar to that of Donte Smith. 

                        Washington's phone calls also were recorded while he was incarcerated.  In one of those calls, Washington recited rap lyrics about shooting rival gang members.  In other phone calls, he used gang lingo, including addressing the person he was speaking to as " cuz," a term designating a TPC member.

Expert Gang Testimony

                        Detective Rodriguez testified as the prosecution's expert witness on criminal street gangs.  He has been assigned to a gang unit for 9 of the 17 years he has been a peace officer.  His duties include gathering intelligence information about gangs and gang members, investigating gang crimes, and testifying as a gang expert in criminal prosecutions.

                        Since 2000, Rodriguez's assignment has focused on investigating crimes perpetrated by TPC members.  These crimes included several murders, narcotics sales, armed robberies and firearms possession.  Rodriguez testified at length about the culture and operation of street gangs in general and TPC in particular.

                        TPC and the Nutty Block Crips have been rivals since 2000.  Detective Rodriguez testified that he investigated attempted murder and armed robbery charges against Charles Mosley, a TPC member.  Mosley was convicted of three counts of armed robbery on October 18, 2004.  The robberies occurred in 2002 and 2003.  Rodriguez testified that he had also investigated a shooting committed by Marcell Jones, a TPC member, on November 3, 2003.  Jones was convicted of attempted murder.  In Rodriguez's opinion, the charged crimes were committed for the benefit of, at the direction of, and in association with, the TPC gang.  The crimes benefited the gang because the status of the gang and the status of the gang members increases, and its hold is made more secure when members commit violent crimes, especially those involving retaliation. 

                          The most recent violence began in March 2005.  On June 23, 2005, Jolson Smith, a TPC member and close friend of Washington, was killed in TPC territory by the Nutty Block Crips.

                        Detective Rodriguez interviewed Washington on three occasions after his arrest.  The detective said Washington admitted he drove his car with two other TPC members into Nutty Block territory on May 23, 2005, looking for someone to shoot.  Washington said he was angry because his friend, Jolson Smith, had been shot earlier that day in Nutty Block territory.

                        Washington said a TPC member named " Dusty" shot Donte Smith with a gun that had white track tape around the handle.  Detective Rodriguez later learned that there was no TPC member named " Dusty."   Washington admitted wrapping his gun in white track tape.    Rodriguez testified that the crimes charged against Washington were committed for the benefit of, at the direction of, and in association with, TPC.

                        Detective McCarthy of the Los Angeles County Sheriff's Department testified before McKeithan's jury that he and Detective Rodriguez interviewed McKeithan after his arrest.  McKeithan admitted driving the Caprice on May 20, 2005, when Marquis Smith was shot.  He said he and three other gang members, including Washington, were in the car.  Washington and one of the other gang members got out of the car and shot at Marquis.  He said two guns were used during the shooting--a .32 caliber and a .357 magnum.  He said the .32 caliber revolver was confiscated from him during execution of a search warrant on June 23.  He said Washington shot Marquis Smith.

                        McKeithan said he was driving Washington's Caprice on May 24, 2005, but claimed that Washington shot and killed Donte Smith.  McKeithan said he and Washington were socializing at the house of another TPC member when Washington began " verbally pumping everyone up" to shoot a rival gang member.  McKeithan said that he and Washington and two other gang members were in the Caprice, and Washington and another gang member shot Donte Smith using a .357 magnum revolver and the .32 caliber revolver that the police had previously recovered.

                        McKeithan admitted being present at the time shots were fired at Hodge and Williams and carrying a .45 caliber semiautomatic pistol, but denied being involved in the shootings.  When McKeithan was confronted with the fact that both victims had identified him as one of the gunmen, he stated, " [T]hey must have known me."

Defense Evidence

                        Washington and McKeithan testified before both juries. 

                        Washington said he was not a member or associate of the TPC.  He knew gang members because he lived in the same neighborhood.  He said he was attacked while in jail because he was not a gang member.  Washington knew McKeithan and numerous members of his family because they lived in the same neighborhood.  He said McKeithan had been in his Caprice " once or twice .  .  . [t]o go to the store."

                        Washington testified that he had lied during interviews with detectives about everything related to the charged crimes.  He said he would never inform on a TPC member because he knew that if he " snitched" he would be killed.  He said the information he provided the detectives came from the streets.  He said he lied to detectives because he thought he would be released if he told them " what they wanted to hear."   Washington denied participating in or being present during the charged crimes.

                        On cross-examination, Washington claimed that the rap lyrics found in his jail cell were written by his cellmate.  He admitted that he " [hung] out with [TPC]" members.  He admitted telling detectives several versions of events in an effort to exonerate himself.

                        In testimony before both juries, McKeithan also denied being a gang member.  He said he generally did not associate with TPC members.  He said he had been confronted and harassed at times by members of the Nutty Block Crips.

                        McKeithan said he was not in the area when Marquis Smith was shot on May 20, 2005, and did not drive the getaway car.  He stated that Washington did not shoot Marquis.  McKeithan said he lied to Detective Rodriguez about the shooting because the detective told McKeithan to " tell him what he wanted to hear," and he " wouldn't be charged with [this crime]," and " they would put in a good word .  .  . with .  .  . the D.A."   He said he did not know about the assault on Jata Goldsberry until Detective Rodriguez told him about it.  McKeithan also denied shooting Donte Smith or being present when the shooting took place.

                        McKeithan admitted being present during the attempted murders of Patrick Hodge and Samuel Williams.  He said he got out of the car and walked over to Hodge and Williams " [t]o see what was going on."   He was not involved in the confrontation, did not have a gun and did not shoot a weapon.  His statement to detectives about possessing a .45 caliber pistol on that occasion was " made .  .  . up" because he was " scared."

                        McKeithan denied running from Deputy Richardson or having a gun in his possession on July 20, 2005.  He said that he told the deputy that he owned the .32 caliber pistol found in the residence when he was arrested because his cousin was on probation and he did not want him to get in trouble.

DISCUSSION

Gang Enhancement Issues

                        The jury found the offenses were committed for the benefit of a criminal street gang, under the enhancement provided in section 186.22, subdivision (b)(1).  Section 186.22, subdivision (b)(1) imposes additional punishment when a defendant commits a felony for the benefit of, at the direction of, or in association with, a criminal street gang.  To establish that a group is a criminal street gang within the meaning of the statute, the People must prove:  " (1) the group is an ongoing association of three or more persons sharing a common name, identifying sign, or symbol; (2) one of the group's primary activities is the commission of one or more statutorily enumerated criminal offenses; and (3) the group's members must engage in, or have engaged in, a pattern of criminal gang activity."   (People v. Maldonado (2005) 134 Cal.App.4th 627, 631, quoting People v. Duran (2002) 97 Cal.App.4th 1448, 1457.) 

Standard of Review

                        The criminal gang enhancement must be supported by substantial evidence.  (People v. Vy (2004) 122 Cal.App.4th 1209, 1221-1222.)  When we review the record for substantial evidence, our role is a limited one.  We do not reweigh the evidence, but rather determine whether, based on the entire record, a rational trier of fact could find the People proved the enhancement beyond a reasonable doubt.  (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)  We must presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment.  (People v. Johnson (1980) 26 Cal.3d 557, 576-577.) 

Evidence of " Primary Activities"

                        Appellants argue that there is insufficient evidence to support the " primary activities" element of the gang allegation because there was no expert testimony that the specified crimes of robbery and attempted murder were primary activities.

                        " The phrase 'primary activities,' as used in the gang statute, implies that the commission of one or more of the statutorily enumerated crimes is one of the group's 'chief' or 'principal' occupations."   (People v. Sengpadychith (2001) 26 Cal.4th 316, 323.)  Proof that a " group's members consistently and repeatedly have committed criminal activity listed in the gang statute" is sufficient to establish the gang's primary activity.  (Id. at p.  324.)  The occasional commission of crimes by the gang's members, however, is insufficient.  (Id. at p.  323.)  The trier of fact may consider past offenses and the charged offenses in determining whether the primary activity element is satisfied.  (Id. at pp. 320, 323.)  Expert testimony may be used to establish that one of the group's primary activities is the commission of statutorily enumerated offenses.  (Id. at p. 324; People v. Gardeley (1996) 14 Cal.4th 605, 617-620.)

                        Detective Rodriguez testified as the prosecution's expert witness on criminal street gangs.  He testified before both juries that he investigated attempted murder and armed robbery charges against Charles Mosley, a TPC member.  Mosley was convicted of three counts of armed robbery on October 18, 2004.  The robberies occurred in 2002 and 2003.  Rodriguez testified that he had also investigated a shooting committed by Marcell Jones, a TPC member, on November 3, 2003.  Jones was convicted of attempted murder.  Murder, attempted murder and armed robbery are offenses enumerated in the statute.  (§  186.22, subd. (e).)

                        The record in this case contains both expert testimony and specific examples of criminal conduct to support the jury's finding regarding the primary activities of TPC.  Appellants contend, however, that the evidence presented is deficient because it lacks an expert opinion referring directly to the " primary activities" of the gang.  We find appellants' argument unpersuasive.  No case has held that a gang expert is required to quote the statute verbatim to satisfy the " primary activities" element of the statute. 

                        Appellants rely on People v. Perez (2004) 118 Cal.App.4th 151.  In that case, the appellate court found insufficient evidence that a gang's primary activities fell within the statutory definition where there was evidence of " retaliatory shootings of a few individuals over a period of less than a week, together with a beating six years earlier" because such evidence failed to establish consistent and repeated criminal activity.  (Id. at p.  160.)  That case is inapposite.  Here, there was expert testimony presented on TPC's primary activities.  In addition, TPC's qualifying criminal history was far more extensive and more recent than that in Perez.  (See People v. Vy, supra, 122 Cal.App.4th at pp. 1225-1226 [distinguishing Perez and finding one prior assault, one prior assault with a deadly weapon, and the charged attempted murder over a three-month period adequate to establish the " primary activities" of the gang].)

                        We conclude the evidence is sufficient to support the jury's finding that the commission of the statutorily enumerated criminal offenses was one of TPC's primary activities.

Attempted Murder as a " Primary Activity"

                        Appellants argue that attempted murder is not one of the qualifying crimes for the primary activities element of the gang allegation because only " consummated crimes" qualify as primary activities.  The law is to the contrary. 

                        In People v. Vy, supra, 122 Cal.App.4th at pages 1227-1228, the court held the predicate crimes listed in section 186.22, subdivision (e) include attempted crimes.  We agree with the Vy court's reasoning:  " If we were to take defendant's argument to its logical extreme, then a group that committed numerous crimes of attempted murder could not qualify as a criminal street gang under the 'primary activities' requirement of section 186.22(f), simply because the crimes did not result in the victims' deaths.  The fact that the violent gang is one 'that couldn't shoot straight'.  .  . should not of itself exempt it from being a criminal street gang."   (Id. at p.  1227, fn. omitted.)

                        Moreover, as astutely noted by the prosecution, attempted murder is a more serious crime than many of the crimes enumerated in section 186.22, subdivision (e).  The list includes possession of a firearm, car theft, and vandalism.  (§  186.22, subd. (e)(20), (23) & (25).)  In construing statutes, we must be mindful of the consequences that would flow from a particular interpretation and avoid absurd results.  Excluding attempted murder from the list of primary activities while lesser offenses are included would lead to an absurd result and not promote the purpose of the gang statute.

Evidence that McKeithan was an Active Member/Participant in a Street Gang

                        McKeithan argues there was insufficient evidence to support a finding that he was an active member or participant in a street gang.  Substantial evidence is evidence that is " reasonable, credible, and of solid value" from which a reasonable trier of fact could find the essential elements of the charge or allegation true beyond a reasonable doubt.  (People v. Vy, supra, 122 Cal.App.4th at p.  1224; People v. Duran, supra, 97 Cal.App.4th at pp.  1456-1457.)

                        Other than McKeithan's dubious statement that he was not a gang member, all the evidence is to the contrary.  McKeithan was identified as the shooter by Jata Goldsberry and Patrick Hodge and Samuel Williams.  By his own admission, he was with other TPC members when shots were fired at Hodge and Williams.  A .32 caliber bullet, consistent with a gun McKeithan owned and that shot Marquis Smith, was found in the Caprice.  More than substantial evidence supports a finding that McKeithan was a member of TPC.

Alleged Error in Failing to Give Certain Jury Instructions

Accomplice Instruction

                        At trial, McKeithan testified that Washington shot Marquis Smith.  Washington argues that the trial court erred by not giving sua sponte an instruction that a defendant cannot be convicted on the basis of the uncorroborated testimony of an accomplice.  (§  1111.) 

                        The prosecution asserts that the issue is waived because no instruction was requested and the court has no duty to give such an instruction sua sponte.  The prosecution asks the court to " explicitly rule on the waiver argument, even if this Court decides, alternatively, that appellants' contention fails on the merits."

                        In People v. Avila (2006) 38 Cal.4th 491, the most recent Supreme Court case on the issue, but cited by neither party, the court reviewed prior cases, including those holding that an accomplice instruction need not be given absent a defense request.  The court then concluded:  " [D]ecisional law existing at the time of trial recognized it was within the trial court's discretion not to give accomplice instructions with respect to [co-defendant's] testimony.  But [People v.] Alvarez [(1996) 14 Cal.4th 155]and [People v.] Box [(2000) 23 Cal.4th 1153] make clear that a trial court should instruct the jury that, to the extent a codefendant's testimony tends to incriminate a defendant, it should be viewed with care and caution and is subject to the corroboration requirement."   (Id. at p.  562.)  We believe in this statement the Supreme Court indicates that an accomplice instruction is required even when not requested by defense counsel.

                        As in Avila, however, failure to give the instruction does not require reversal because any error in this regard was nonprejudicial.  " A trial court's failure to instruct on accomplice liability under section 1111 is harmless if there is 'sufficient corroborating evidence in the record.'  [Citation.]  To corroborate the testimony of an accomplice, the prosecution must present 'independent evidence,' that is, 'evidence that tends to connect the defendant with the crime charged' without aid or assistance from the accomplice's testimony.  [Citation.]  Corroborating evidence is sufficient if it tends to implicate the defendant and thus relates to some act or fact that is an element of the crime.  [Citations.]  '" [T]he corroborative evidence may be slight and entitled to little consideration when standing alone." '"   (People v. Avila, supra,38 Cal.4th at pp. 562-563.)

                        Here, McKeithan's testimony was sufficiently corroborated by independent evidence.  Jata Goldsberry described the car the gunmen used in the Marquis Smith shooting as a car owned by Washington.  At one point during an interrogation, Washington admitted shooting Marquis Smith, though he later denied it.  Spent bullet fragments were recovered at the scene; at least one of them was fired from a .357 magnum handgun. 

                        Following his arrest, Washington stated to detectives that he had used " like a .357 or some shit" to commit the shooting and had wrapped the gun in white track tape.  Washington also admitted that after the killing of his friend Jolson Smith, he went hunting for someone to shoot in Nutty Block territory.  This evidence corroborated McKeithan's testimony and " tend[ed]" to connect Washington to the charged crime.  (People v. Hayes (1999) 21 Cal.4th 1211, 1270; People v. Bunyard (1988) 45 Cal.3d 1189, 1208, fn. 9.)

                        Moreover, other instructions adequately directed the jury how to weigh the credibility of witnesses.  (See CALJIC Nos. 2.20 [weighing credibility and considering such factors as the existence of bias, interest or other motive to lie]; 2.21.1 [discrepancies in testimony]; 2.22 [weighing conflicting testimony]; and 2.13 [prior inconsistent statements].)  These instructions were sufficient to inform the jury to view McKeithan's testimony with care and caution.  (See People v. Cornwell (2005) 37 Cal.4th 50, 88; People v. Lewis (2001) 26 Cal.4th 334, 371.)

Firearm Instruction

                        McKeithan asserts that his conviction of carrying a loaded firearm must be reversed because the court did not instruct the jury that the firearm must be " loaded," and there was insufficient proof that he was " an active participant in a criminal street gang."

                        McKeithan was convicted of violation of section 12031, subdivision (a)(1), which states:  " A person is guilty of carrying a loaded firearm when he or she carries a loaded firearm on his or her person or in a vehicle while in any public place or on any public street  .  .  .  ."

                        The trial court instructed the jury with CALJIC No. 12.47.1, which states in part, " Every person who carries concealed upon his or her person, with knowledge of its presence, any pistol, revolver, or other firearm capable of being concealed upon the person, who is an active participant in a criminal street gang, is guilty of a violation of Penal Code section 12031(a)(1), a crime."

                        McKeithan did not object to the incorrect instruction and the prosecution argues the claim is waived.  As above, the prosecution asks the court to rule on the waiver argument.  " A trial court has a sua sponte duty to instruct on the principles of law that are relevant to and govern the case, including instruction on all of the elements of the offense."   (People v. Magee (2003) 107 Cal.App.4th 188, 193.)

                        Instructional errors are reviewable on appeal in the absence of an objection to the extent they affect a criminal defendant's substantial rights.  (People v. Prieto (2003) 30 Cal.4th 226, 247.)  " [A]n instructional error that improperly describes or omits an element of an offense .  .  . generally is not a structural defect in the trial mechanism that defies harmless error review and automatically requires reversal under the federal Constitution."   (People v. Flood (1998) 18 Cal.4th 470, 502-503; see also People v. Huggins (2006) 38 Cal.4th 175, 211-212 [" 'instructional errors--whether misdescriptions, omissions, or presumptions--as a general matter fall within the broad category of trial errors subject to Chapman review on direct appeal.'.  .  .  Accordingly, 'we proceed to consider whether it appears beyond a reasonable doubt that the error did not contribute to this jury's verdict'" ].)

                        Instructional error will be found harmless when the evidence before the jury was so overwhelming " as to leave it beyond a reasonable doubt the verdict would have been the same had the jury been instructed" on the missing element.  (People v. Johnson (1993) 6 Cal.4th 1, 46.)  " This requires us to find that '" 'the error complained of did not contribute to the verdict obtained,'" ' because it was 'unimportant in relation to everything else the jury considered on the issue in question.'"   (People v. Noble (2002)100 Cal.App.4th 184, 191.)

                        At trial, McKeithan did not dispute that a loaded gun was found in the residence where he was arrested.  Instead, he claimed that Deputy Richardson's account was fabricated and that the gun did not belong to him.  Thus, there was nothing upon which McKeithan's jury could have concluded that the gun was not loaded.  (See People v. Davis (2005) 36 Cal.4th 510, 564 [" even when jury instructions completely omit an element of a crime, and therefore deprive the jury of the opportunity to make a finding on that element, a conviction may be upheld under Chapman where there is no 'record .  .  . evidence that could rationally lead to a contrary finding' with respect to that element" ].)

Voluntary Manslaughter Instruction

                        McKeithan argues that the court erred in failing to give an attempted voluntary manslaughter instruction as to the attempted murders of Patrick Hodge and Samuel Williams because that crime is a lesser-included offense of attempted murder.  He argues that if the jury had been given such instruction, it might have found that McKeithan acted out of an unreasonable belief that he needed to defend himself because he was in gang territory.

                        " [T]he trial court normally must, even in the absence of a request, instruct on general principles of law that are closely and openly connected to the facts and that are necessary for the jury's understanding of the case."   (People v. Carter (2003) 30 Cal.4th 1166, 1219.)  The obligation to instruct includes giving instructions on lesser-included offenses when warranted by substantial evidence.  (People v. Breverman (1998) 19 Cal.4th 142, 162.)  Murder may be reduced to voluntary manslaughter only when a defendant acts in a " sudden quarrel or heat of passion" (§  192, subd. (a)) or kills in " the unreasonable but good faith belief in having to act in self-defense" (People v. Barton (1995) 12 Cal.4th 186, 199).

                        Here, there is no evidence to support an inference that the shootings of Patrick Hodge and Samuel Williams were anything but attempted murder.  Before the shootings, McKeithan and another gang member approached Hodge and Williams and asked, " [W]here are you from?"   The question was meant to elicit information about gang membership.

                        One of the men said " Fuck Nastys," a derogatory term for the Nutty Block Crips.  When Hodge replied that he was not a member of that gang, one of the gunmen said, " This [is] Tragniew Park."   As Hodge and Williams walked away, McKeithan and his companion began shooting, striking Hodge in the leg and right heel.

                        At the time of the shootings, McKeithan was in TPC territory--not Nutty Block territory, he and his companion initiated the confrontation, and the shooting started when Hodge and Williams began walking away.  The trial court did not err in failing to give this instruction as there was no evidentiary basis for it.  (See In re Christian  S. (1994) 7 Cal.4th 768, 773, fn. 1 [where appellant creates circumstances under which he might be pursued or attacked by an adversary, he may not involve the theory of self-defense based on his own criminal conduct]; see also People v. Seaton (2001) 26 Cal.4th 598, 664-665.) 

Alleged Prosecutorial Errors

                        Appellants each claim an instance of prosecutorial misconduct.  " 'The applicable federal and state standards regarding prosecutorial misconduct are well established.  " '" 'A prosecutor's .  .  . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct " so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process." '"   [Citations.]  Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves " '" the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury." '" '"   (People v. Hill (1998) 17 Cal.4th 800, 819, quoting People v. Samayoa (1997) 15 Cal.4th 795, 841.)

Comment that Washington Should be Convicted to Deal

With Broader Local Gang Problem

                        Washington's claim of prosecutorial misconduct arises from comments made during the prosecutor's rebuttal closing argument, as follows:  " We owe the members of this community as citizens of Los Angeles County, as Los Angelinos, we owe it to our communities to put an end to this gang violence.  [¶]  Is finding the defendant guilty in this case going to end all gang violence?  No.  But it will put a stop to a portion because we know this man is responsible for a portion of it.  And it is sad that our communities are plagued by people like Mr. Washington and his fellow gang members who attack innocent young kids, who drive up and down streets looking for somebody to shoot."

                        No objection was made to these comments.  The general rule is that failure to object results in forfeiture of the point because the trial court should be given an opportunity to " '" correct this abuse and thus, if possible, prevent by suitable instructions the harmful effect upon the minds of the jury." '"   (People v. Cox (2003) 30 Cal.4th 916, 952.)

                        In any event, the prosecutor's remarks were not improper.  " 'It is settled that a prosecutor is given wide latitude during argument.  The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom.  [Citations.]  It is also clear that counsel during summation may state matters not in evidence, but which are common knowledge or are illustrations drawn from common experience, history or literature.'"   (People v. Wharton (1991) 53 Cal.3d 522, 567.)

                        Here, the prosecutor's remarks were directed to the widely acknowledged gang violence problem in Los Angeles.  They were general remarks about the role of private citizens in combating gang violence and fairly characterized the number and seriousness of Washington's crimes, as shown by the evidence.  (See, e.g., People v. Stanley (2006) 39 Cal.4th 913, 960.)

                        Even if the remarks were improper, there is no reasonable likelihood that the result would have been different.  (People v. Ayala (2000) 24 Cal.4th 243, 288.)  The evidence supporting Washington's guilt was substantial.  Moreover, the jury was instructed that the attorney's statements were not evidence.  The appellate court presumes that " 'the jury treated the court's instructions as statements of law, and the prosecutor's comments as words spoken by an advocate in an attempt to persuade.'"   (People v. Morales (2001) 25 Cal.4th 34, 47.)

Insinuation that McKeithan Engaged in Threatening Behavior

                        At trial, McKeithan objected to admission of testimony by a witness that she moved from the neighborhood after she witnessed one of the shootings and that she did not want to appear as a witness at the trial.  McKeithan asserts admission of this testimony deprived him of a fair trial because the testimony contained an insinuation that he engaged in threatening behavior. 

                        We review objections to a trial court's admission of evidence for abuse of discretion.  (People v. Guerra (2006) 37 Cal.4th 1067, 1113.)  We do not perceive the complained of testimony could be viewed as insinuating threatening behavior by McKeithan.  In addition, a witness's fear of recrimination of any kind by anyone is relevant because the testimony is more credible because of his personal stake in the testimony.  (People v. Olguin (1994) 31 Cal.App.4th 1355, 1368-1369.)  Moreover, any prejudice to McKeithan was eliminated by the trial court's admonition that " evidence of threats made to a witness [who] was intimidated only is relevant to the witness['s] state of mind, attitude, actions, bias, prejudice or lack of prejudice."

                        Appellants also claim that cumulative error requires reversal of the judgments.  We disagree.  We find no state or constitutional error, and, thus, appellants are foreclosed on appeal from making a claim of cumulative error.  (People v. Avila, supra, 38 Cal.4th at p.  608.)

Alleged Sentencing Errors

                        Washington contends that the court erred in sentencing him for both the substantive crime of murdering Donte Smith and conspiracy to commit murder.  Section 654 prohibits multiple punishments for offenses committed during a single course of conduct.  (People v. Harrison (1989) 48 Cal.3d 321, 335.)  A defendant may not be sentenced for both conspiracy and a substantive crime when the objective of the conspiracy was to commit the substantive crime.  (People v. Ramirez (1987) 189 Cal.App.3d 603, 615.)  " [W]hile a defendant may be convicted of the substantive crime and the conspiracy to commit it, he may not be punished for both offenses unless the conspiracy extended beyond the substantive offense."   (People v. Cooks (1983) 141 Cal.App.3d 224, 317.)

                        " The prohibition in section 654 against multiple punishment applies not only where one act in the ordinary sense is involved but also where there is a course of conduct that violates more than one statute and comprises an indivisible transaction.  The divisibility of a course of conduct depends upon the intent and objective of the defendant, and if all the offenses are incident to one objective the defendant may be punished for any one of them but not for more than one."   (In re Cruz (1966) 64 Cal.2d 178, 180.)

                        The prosecution argues that there was no error in sentencing in this regard because there is no evidence that Donte Smith's murder was the object of the conspiracy charged in count 4.  The conspiracy count alleges that Washington " [a]greed, along with accomplices, to go search for someone to shoot."   Washington admitted that when he drove into Nutty Block territory with two accomplices on May 23, 2005, he was " looking for anybody slippin."   Where, as here, the named victim's death was not the object of the conspiracy, there was no error in imposing punishment for the conspiracy count.  (In re Cruz, supra, 64 Cal.2d at p.  181; see also Neal v. State of California (1960) 55 Cal.2d 11, 20 [" A defendant who commits an act of violence with the intent to harm more than one person or by means likely to cause harm to several persons is more culpable than a defendant who harms only one person" ].)

                        The prosecutor agrees with Washington's assertion that the court erred in imposing a determinate sentence enhancement for the gang allegation to the conspiracy count.  In People v. Lopez (2005) 34 Cal.4th 1002, our Supreme Court held that on a 25-year-to-life sentence for first degree murder, it is the 15-year minimum term established by section 186.22, subdivision (b)(5), and not the 10-year enhancement under subdivision (b)(1)(C), that applies. 

                        The trial court is ordered to issue an amended abstract of judgment as to count 4 to reflect that Washington is subject to the minimum parole eligibility date of 15 years under section 186.22, subdivision (b)(5).  In all other respects, the judgments are affirmed.

                        NOT TO BE PUBLISHED.

                                                                        PERREN, J.

We concur:

                        GILBERT, P.J.

                        COFFEE, J.

Jack Morgan, Judge

Superior Court County of Los Angeles

______________________________

                        Richard A. Levy, under appointment by the Court of Appeal, for Defendant and Appellant Glenn Washington.

                        Law Offices of Russell S. Babcock, Russell S. Babcock, under appointment by the Court of Appeal, for Defendant and Appellant Clarence McKeithan.

                        Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, Paul M. Roadarmel, Jr., Deputy Attorney General, for Plaintiff and Respondent.

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by El Cajon Property line Lawyers.

                [1] All statutory references are to the Penal Code unless otherwise stated.

            [2] The crimes are discussed in chronological order.