Opinion
D075546
09-30-2019
THE PEOPLE, Plaintiff and Respondent, v. GARY LAMON LEE, Defendant and Appellant.
Cynthia M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Collette Cavalier, and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 16CR073390) APPEAL from a judgment of the Superior Court of San Bernardino, William Jefferson Powell IV, Judge. Reversed. Cynthia M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Collette Cavalier, and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
The jury convicted Gary Lamon Lee of first degree murder (Pen. Code, § 187, subd. (a).) The jury found true that Lee committed the offense for the benefit of or at the direction of or in association with a criminal street gang, within the meaning of section 186.22, subdivision (b). The jury also found true that Lee personally discharged a firearm in the commission of the murder within the meaning of section 12022.53, subdivision (d).
Statutory references are to the Penal Code unless otherwise specified.
The court sentenced Lee to prison for 10 years plus 50 years to life, which was comprised of: 25 years to life on count 1, plus 25 years to life for the firearm use enhancement (§ 12022,53, subd. (d)) and an additional 10 years under section 186.22, subdivision (b)(1)(C).
Lee appeals, contending the trial court erred (1) failing to sua sponte instruct the jury on aiding and abetting liability; (2) by allowing a witness to testify about certain hearsay statements; (3) permitting the prosecution's gang expert to vouch for a witness's credibility; and (4) allowing that same expert to testify specifically about Lee's intent and motivations for shooting the victim. He also claims cumulative error warrants reversal. In addition, Lee maintains the court improperly sentenced him to an additional 10 years under section 186.22, subdivision (b) and the abstract of judgment needs to be corrected to reflect the correct date of his conviction.
Here, we are not persuaded that the court had a sua sponte duty to instruct the jury on an aiding and abetting theory of criminal liability on the record before us. Aiding and abetting is a theory of criminal liability, and the prosecution did not argue that Lee could be guilty of murder as an aider and abettor. That said, we conclude the court made three evidentiary errors, and the cumulative impact of those errors warrants reversal. Because we are reversing Lee's conviction, we do not reach his additional claims that he was sentenced improperly and the abstract of judgment must be corrected.
FACTUAL BACKGROUND
Jasmin C. lived in an apartment complex at 48th and "F" Street. On the evening of December 17, 2015, her boyfriend Jamil T., a Delmann Heights Bloods gang member with the moniker "Little Franco," visited her at her apartment. Jasmin C. told her boyfriend to stay in her apartment after he mentioned that he was concerned for his safety. Jamil T. did not listen to Jasmin C. Instead, he joined his friends outside. Shortly thereafter, Jasmin C. heard several gunshots. Other residents in Jasmin C.'s apartment complex heard gunshots as well. Jasmin C. and two other residents went outside and saw Jamil T. on the ground between two vehicles. He had been shot once in the chest. The bullet struck Jamil T.'s heart and both of his lungs. He was moved into a driveway, and a woman performed CPR on him. Another resident in the complex was shot in her arm.
At about 8:15 p.m., San Bernardino County Sheriff Joshua Gile responded to a "shots fired call" at the complex. When he arrived at the scene, he observed Jamil T. on the ground. Jamil T. was deceased. It was "pandemonium" at the scene with roughly 50 people present. According to Gile, people at the scene were making references to the Bloods and the California Garden Crips, both criminal street gangs. Also, at that time, Delmann Heights and the California Garden Crips were rivals. A day before Jamil T. was shot, a member of the California Garden Crips was killed in a gang related shooting.
Sherriff deputies recovered 14 7.62 by 39 caliber fired rifle cartridge casings and two .40 caliber cartridge casings. No witnesses at the scene could identify the shooter.
Deputies obtained video surveillance of the shooting. The video showed a truck parking on "F" Street, and, after three people exited the vehicle, muzzle flashes can be seen. After the muzzle flashes, two of the individuals flee to the East. The remaining individual then fired additional shots before fleeing in the same direction. The same vehicle had driven by the scene about 30 minutes earlier. Deputies were unable to identify the people involved or the truck from the video.
In 2015 and 2016, the "Operation No Boundaries" law enforcement task force was focusing on criminal activity associated with the California Garden Crips. On September 27, 2016, in connection with the task force, a search warrant was executed at the home of Isaiah M. in Highland. In Isaiah M.'s room, sheriff deputies located three semiautomatic rifles, including a Saiga AK-47. Subsequent ballistics analysis determined that the Saiga AK-47 was used during the December 17, 2015 shooting. The bullet recovered from Jamil T.'s body was consistent with the AK-47 rounds recovered at the scene. The AK-47 was registered to Demetri K., a member of the California Garden Crips. In addition, this AK-47 was used in a music video by Tracy V., a California Garden Crips gang member. The video was filmed in October 2016. Lee was not pictured in the video.
Tomas S. was a member of California Garden Crips. Tomas S. and Lee, another documented member of California Garden Crips, were good friends. According to Tomas S., a week or so after the shooting, Lee went to Las Vegas. Tomas S. talked to Lee on December 25, 2015. Lee was in Las Vegas at that time.
On April 9, 2016, Tomas S. was dropping Lee off at a friend's house when Lee told him about his involvement in the shooting of Jamil T. According to Tomas S., Lee told him that he had not been around because it was "hot around," meaning law enforcement was investigating the shooting. While laughing, Lee explained that one individual shot at the victim, who fled toward Lee. Lee was waiting to "finish[] him off." Lee, while pretending to hold an assault rifle, stated "I was up here waiting while what's his name came this way and I split his noodles. We see—we split his noodles, see his brains come out." Lee told Tomas S. that the gun he used was the AK-47, known as "The Kater." Lee referred to himself as "the Kater man" and stated he had the "Kater" and he "split that boy's noodles. His brains was on the floor and that is how we did him."
Around June or July 2016, Tomas S. and other California Garden Crips members including Lee, "Boxx," and Tracy V., were playing video games at a "trap house" when the topic of Jamil T.'s shooting came up. Boxx indicated that he had dropped Lee off at a certain location, and he fired shots as a diversion to make the victim run away. Lee also stated that he "got off with the 'K' " and repeated that he had "split that boy's noodles." Lee indicated they got rid of the truck "just in time" because the streets were "getting hot."
A gang hides guns and sells drugs at a "trap house." The location of a trap house is known to only certain individuals.
On another occasion, Tomas S. was driving to a bail bondsman with William M. when William M. stated that he was glad they got rid of the truck and that Lee was "out of the way." William M. indicated that he and two others participated in the murder of Jamil T.
On August 14, 2016, law enforcement pulled over Tomas S. while he was driving in Delmann Heights Bloods territory, and Lee was in the car with him. A gun was found near Lee's seat.
After he was arrested again in November 2016 for stealing ammunition from a Bass Pro Shop with other California Garden Crips members, Tomas S. talked to law enforcement during two interviews occurring on November 3 and December 20, 2016. He initially told law enforcement that the AK-47 in the music video was fake. However, he was told that ballistics tests on the weapon showed it had been used in the shooting. He told law enforcement that the AK-47 was real, and he asked if he could get a deal. Tomas S. provided names of California Garden Crips members. He agreed to testify against his fellow gang members. Tomas S. provided a DA investigator with a music CD Lee had given him. In a song on the CD, Lee refers to himself as the "Kater man," and sings about "catching bodies" and "AK-47 shells making the streets hot." As part of a plea deal in which Tomas S. agreed to testify at Lee's trial, Tomas S. pled guilty to one count of street terrorism in exchange for a jail term with credit for time served, and three years of felony probation.
The subscriber information and call detail records from Lee's phone and Demetri K.'s phone were obtained by law enforcement. An analyst with the San Bernardino County Sheriff Department determined that both phones traveled from Las Vegas to San Bernardino on the day of the shooting. In the evening hours, Lee's cell phone was near the crime scene.
Law enforcement also executed a search warrant for a Facebook profile with the name of "Droopk Johnson," which contained a profile picture of Lee. The email account Droop1592@gmail.com was associated with this Facebook account. Law enforcement obtained an internet search history associated with that Google account. At 11:53 p.m. on the night of the shooting, the account was used to search "San Bernardino shooting" as well as articles in the crime section of the San Bernardino newspaper.
At trial, the prosecution offered the testimony of a criminal street gang expert. The expert testified that the California Garden Crips gang has over 100 documented members. The gang claims an area in the northwestern part of the city and has been around since the 1970's. Common symbols for the gang are the letters "CGC," "DS," and "LS," and the numbers "373," "21," and "14." The color green is a favorite of the California Garden Crips gang. The expert further testified that the gang has established a pattern of criminal activities and members have committed weapons possessions, narcotic sales, burglaries, murders, and assaults with firearms. The California Garden Crips' rivals are Delmann Heights Bloods, Little Zion Bloods, and IE Projects Black Rag.
On May 7, 2015, California Garden Crips member Tony V. was convicted of possession of a firearm. On May 26, 2016, fellow gang member James L. was convicted of attempted murder.
The expert testified that based on social media and photographs, he believed the victim in this case was a Delmann Heights Blood gang member. Further, based on field identification cards and the investigation during Operation No Boundaries, he believed Lee was a member of California Garden Crips.
The expert testified that he believed the California Garden Crips used gang violence to further and protect its reputation. He opined that the crime here was "the epitome of [a] gang related crime, both at the association with other members as well as to promote the criminal street gang" against a rival. He believed Lee and other California Garden Crips members' statuses with the gang increased following the shooting. Moreover, the expert testified that shooting a rival in front of members of the public would benefit the status of the gang and would "strike fear" in the victims of the opposing gang.
DISCUSSION
I
AIDING AND ABETTING INSTRUCTION
A. Lee's Contentions
Lee contends the trial court erred in failing to sua sponte instruct the jury on aiding and abetting. We disagree.
B. Background
It is undisputed that the prosecution's theory of the case was that Lee shot the victim. As such, neither the prosecution nor the defense asked for a jury instruction about aiding and abetting.
During jury deliberations, the jury asked the court whether Lee could be guilty of first or second degree murder without a "firearm charge." The court interpreted the question as whether the jury could find Lee guilty of murder, but find the firearm allegation under section 12022.53, subdivision (d) not true. Outside the presence of the jury, the trial court stated, "I think the answer is no. Because, although you can find someone guilty as [an] aider and abettor, we didn't instruct on aider and abettor. The People didn't proceed on that theory. This is a direct shooter theory. I think the answer is no."
Lee's counsel responded to the court's comments as follows:
"Let me think for a moment. [¶] I would tend to agree with the Court's reasoning on that. It is—the evidence is abundantly clear that a firearm was used. They would have to conclude that Mr. Lee may have been present at the scene, but was not the shooter. I think that would be my quick analysis of it."
The court indicated it agreed with defense counsel's analysis. Defense counsel then again reiterated his position:
"No. And so I think the answer is probably correct, no. Of course, I would also urge, yes, because—Well, no. I think the answer is no. I think we've been in agreement that this is a kind of an all or nothing case as far as Mr. Lee is concerned."
Ultimately, the parties agreed with the court's proposed response.
The jury asked a subsequent question to clarify its previous question about the firearm allegation. In doing so, the jury attached a copy of the jury instruction regarding the firearm enhancement and underlined a portion of the instruction that indicated if the jury found Lee guilty it must then decide whether the prosecution proved the additional allegation that Lee personally discharged a firearm.
In response to the jury's request for clarification, the court indicated its belief it should bring the jury into court and orally clarify the answer to the previous question. The court stated: "[T]he People have not argued nor have we instructed on felony murder, aiding and abetting, conspiracy, all of those different avenues, to get to murder. But really it's a direct shooter theory that the People have elected and, thus, they cannot find that he was an aider and abettor to some other shooter, and that once they determine whether or not he's guilty on Count 1, then they turn to the allegations, specifically the gang allegation, the firearm allegation."
The court further observed that it would be an "inconsistent verdict" if the jury found Lee guilty of murder, but found the firearm enhancement not true because the People were not arguing an aiding and abetting theory.
Lee's counsel maintained that the jury should be informed that it could find Lee guilty of murder and then find the firearm allegation not true, noting that the evidence showed that three people were involved in the shooting and the only evidence that Lee was the shooter was Tomas S.'s testimony. Moreover, defense counsel noted that if the jury concluded Lee was an aider or abettor and was merely present at the scene, it "might be insufficient to sustain a conviction."
With the consent of the parties, the court brought the jury into the court room to resolve the questions relating to the firearm enhancement. The court and one of the jurors engaged in the following exchange:
"THE COURT: . . . [¶] . . . I do have some questions about jury question number three and jury question number four. [¶] If you remember, question three was: Can he be guilty of first or second degree without a firearm charge? [¶] And then question four: To clarify question number three, please see attached page with underlined instructions. [¶] That is the special allegation of personal use, discharge, and causing great bodily injury with a firearm. [¶] At this point, who wants to speak for the jury? [¶] Question number two—or in seat number two, I took question three, can he be guilty of first or second without a firearm charge, I answered that real simply no because that is the only theory the people are proceeding under is what we call a direct shooter theory, not aiding/abetting, not felony murder, not accomplice liability. [¶] So it's kind of all or nothing. Is that what the question was about?
"JUROR NO. 2: Yes, except that when you look at the attachment, it says we are then to decide on the other. You know, the no answer takes the decision out of the equation; you understand?
"THE COURT: I do.
"JUROR NO. 2: So that's why we did the attachment for clarification that, okay, are we deciding on that? If it is a no answer, then there is no decision for us to make as far as that instruction.
"THE COURT: Okay. That is a super logical way to think about it. But that's kind of the way it goes because the People are only proceeding under a direct shooter theory on the murder. And so if you find the defendant guilty of either first or second degree, then it is an additional decision on the true or not true special allegation.
"JUROR NO. 2: Additional decision, but not a decision that we make.
"THE COURT: It is a decision you make. It's a separate verdict form. If you find him not guilty of the murder, then there is no decision to make on the armed allegation because that only happens after a guilty decision.
"JUROR NO. 2: So we—In a sense we can say guilty, but not guilty on the other charges.
"THE COURT: You could, yes.
"JUROR NO. 2: Okay.
"THE COURT: It is entirely up to you.
"JUROR NO. 2: That's what we needed."
After answering Juror No. 2's questions and dismissing the jury to further deliberate, the prosecutor moved to dismiss the firearm use enhancement. Lee's counsel did not object. Nevertheless, the trial court denied the prosecutor's request. The jury subsequently found Lee guilty of first degree murder and found true that he personally used a firearm.
C. Analysis
Lee maintains the trial court erred by failing to instruct the jury on aiding and abetting liability. We review a claim of instructional error de novo. (People v. Posey (2004) 32 Cal.4th 193, 218.) "Review of the adequacy of instructions is based on whether the trial court 'fully and fairly instructed on the applicable law.' [Citation.]" (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.) In determining whether error has been committed in giving jury instructions, we consider the instructions as a whole and assume jurors are intelligent persons, capable of understanding and correlating all jury instructions which are given. (Ibid.) " 'Instructions should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation.' [Citation.]" (Ibid.) "The crucial assumption underlying our constitutional system of trial by jury is that jurors generally understand and faithfully follow instructions." (People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17.)
A trial court must sua sponte instruct the jury on general principles of law that are commonly or closely and openly connected to the facts and that are necessary for the jury's understanding of the case. (People v. Najera (2008) 43 Cal.4th 1132, 1136; People v. Abilez (2007) 41 Cal.4th 472, 517.) The general legal principle of aiding and abetting provides that a defendant may be found guilty as a principal to a crime if he "(i) with knowledge of the unlawful purpose of the perpetrator, (ii) and with the intent or purpose of committing, facilitating or encouraging commission of the crime, (iii) by act or advice, aids, promotes, encourages or instigates the commission of the crime." (People v. Cooper (1991) 53 Cal.3d 1158, 1164; see also § 31.) "[I]nstructions delineating an aiding and abetting theory of liability must be given when such derivative culpability 'form[s] a part of the prosecution's theory of criminal liability and substantial evidence supports the theory.' " (People v. Delgado (2013) 56 Cal.4th 480, 488, quoting People v. Prettyman (1996) 14 Cal.4th 248, 266-267.) Aiding and abetting instructions are not required, however, "where '[t]he defendant was not tried as an aider and abettor, [and] there was no evidence to support such a theory.' " (People v. Young (2005) 34 Cal.4th 1149, 1201, quoting People v. Sassounian (1986) 182 Cal.App.3d 361, 404.)
Here, the prosecution did not proceed on an aiding and abetting theory. Instead, the prosecution's only theory was that Lee was the shooter. As such, the court had no sua sponte duty to provide an aiding and abetting instruction. (See People v. Delgado, supra, 56 Cal.4th at p. 488; People v. Young, supra, 34 Cal.4th at p. 1201.)
Relying on case law regarding a court's duty to provide instructions on lesser included offenses, Lee maintains that aiding and abetting instructions were required here. To this end, he asserts that in the absence of an aiding and abetting instruction, the jury was presented with an "unjust all-or-nothing position when evaluating the evidence." He therefore argues that had the jury been instructed on aiding and abetting, it could have found him guilty of the murder, but found the personal use of a firearm allegation not true. We find this argument unavailing.
It is well-established that a trial court must instruct the jury not only on the crime charged but also on lesser offenses that are both included within the crime charged and supported by the evidence. (People v. Barton (1995) 12 Cal.4th 186, 190, 194-195.) "[T]he existence of 'any evidence, no matter how weak' will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is 'substantial enough to merit consideration' by the jury." (People v. Breverman (1998) 19 Cal.4th 142, 162.) Here, however, aiding and abetting is not a lesser included or related crime; it is a theory of criminal liability. (People v. Brigham (1989) 216 Cal.App.3d 1039, 1049, fn. 8.) Consequently, there was no duty to instruct the jury on aiding and abetting, unless this was a theory of liability relied on by the prosecution and was supported by substantial evidence. Lee concedes the prosecution did not proceed on a theory of aiding and abetting.
Additionally, even if we were to find error, Lee would not be able to show prejudice. His argument here is that an aiding and abetting instruction would have allowed the jury to find him guilty of murder, but not necessarily find true the firearm allegation. Nevertheless, the instructions as presented to the jury allowed it to do just that. Indeed, in its discussions with Juror No. 2, the court made clear that the jury could find Lee guilty of murder and find not true the allegation that he used a firearm. Accordingly, we see nothing improper or prejudicial as to Lee because the court did not sua sponte instruct the jury on aiding and abetting.
II
HEARSAY STATEMENTS
A. Lee's Contentions
Lee asserts the trial court erred in admitting William M.'s statements to Tomas S. wherein William M. admitted being involved in the murder of Jamil T. We agree.
B. Background
During his direct examination, Tomas S. testified that during a conversation in April 2016, in his car, Lee admitted that he shot the victim with an AK-47. In addition, Tomas S. stated that he heard about Jamil T.'s death from William M., but he did not explain what William M. had told him.
During cross-examination, Tomas S. was questioned whether he was asked to "drive someone to a bail bonds place." After answering in the affirmative, Tomas S. was asked whether the person he drove "allegedly made statements concerning other crimes . . . that he was involved in." Tomas S. could not recall, so his recollection was refreshed with a police report.
Subsequently, on redirect examination, Tomas S. answered affirmatively after the prosecutor asked, "You were asked about being alone with [William M.] and him telling you about the crime he committed." Lee's counsel then objected on hearsay grounds when the prosecutor asked, "What did [William M.] tell you?" The prosecutor clarified that he was asking Tomas S. about the conversation with the individual he took to the bail bonds place. The court allowed the testimony, noting that that the door had been opened because Lee's counsel had questioned Tomas S. about this incident. At that point, Tomas S. testified that William M. stated the streets had been "hot lately," it was "good that [Lee's] been out of the way," and he was glad they got rid of the truck. Tomas S. further testified that William M. also mentioned that the truck was used to "slide on Lil Franco" and the truck was "hot." He explained that "slide" means "going to a rival territory and taking one of their lives" and said Lee and Isaiah M. would "slide" with William M. in that truck. Tomas S. testified that William M. discussed the maneuver that was used with the truck during the murder. William M. told T.S that he was "glad they got rid of the truck" and "glad [Lee was] out of the way." Tomas S. additionally testified that William M. said that three people, including himself, were involved in the shooting of the victim.
C. Relevant Law
Hearsay statements are generally inadmissible. (Evid. Code, § 1200, subd. (b); see People v. Sanchez (2016) 63 Cal.4th 665, 674 ["[h]earsay is generally inadmissible unless it falls under an exception"].) One exception, codified in Evidence Code section 1230, "permits the admission of any statement that 'when made, was so far contrary to the declarant's pecuniary or proprietary interest, or so far subjected him to the risk of civil or criminal liability, or so far tended to render invalid a claim by him against another, or created such a risk of making him an object of hatred, ridicule, or social disgrace in the community, that a reasonable man in his position would not have made the statement unless he believed it to be true.' [Citation.] As applied to statements against the declarant's penal interest, in particular, the rationale underlying the exception is that 'a person's interest against being criminally implicated gives reasonable assurance of the veracity of his statement made against that interest,' thereby mitigating the dangers usually associated with the admission of out-of-court statements. [Citation.] [¶] To demonstrate that an out-of-court declaration is admissible as a declaration against interest, '[t]he proponent of such evidence must show that the declarant is unavailable, that the declaration was against the declarant's penal interest when made and that the declaration was sufficiently reliable to warrant admission despite its hearsay character.' [Citation.]" (People v. Grimes (2016) 1 Cal.5th 698, 711 (Grimes), quoting People v. Duarte (2000) 24 Cal.4th 603, 610-611 (Duarte).)
We review the trial court's ultimate decision to admit or exclude a statement against penal interest for an abuse of discretion, bearing in mind that the scope of the court's discretion is limited by the applicable law and reversal is appropriate only when there is no reasonable basis for the court's ruling. (People v. Tran (2013) 215 Cal.App.4th 1207, 1217-1218; People v. Brown (2003) 31 Cal.4th 518, 534.)
D. Analysis
Here, Lee maintains the trial court erred in overruling his hearsay objection to Tomas S.'s testimony regarding what William M. told him. The People acknowledge that the court did not deny Lee's objection on hearsay grounds, but instead, the court claimed the evidence was admissible because Lee's counsel had opened the door by asking Tomas S. if he had a conversation with William M. However, the People argue the trial court's rationale for admitting the evidence is unimportant if the ruling is legally correct. (See D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 19.) Further, the People insist William M.'s statements to Tomas S. were admissible under Evidence Code section 1230 as statements against penal interest.
On the record before us, it appears the trial court overruled defense counsel's objection to the testimony under the completeness doctrine. Evidence Code section 356, "sometimes referred to as the statutory version of the common law rule of completeness" (People v. Parrish (2007) 152 Cal.App.4th 263, 269, fn. 3), provides as follows: "Where part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party; when a letter is read, the answer may be given; and when a detached act, declaration, conversation, or writing is given in evidence, any other act, declaration, conversation, or writing which is necessary to make it understood may also be given in evidence" (Evid. Code, § 356). Because the People concede that the court's legal rationale for overruling the objection was incorrect and neither party addresses the completeness doctrine in their briefs, we do not discuss the issue further here.
To demonstrate that an out-of-court declaration is admissible as a declaration against interest, " '[t]he proponent of such evidence must show that the declarant is unavailable, that the declaration was against the declarant's penal interest when made and that the declaration was sufficiently reliable to warrant admission despite its hearsay character.' " (Grimes, supra, 1 Cal.5th at p. 711, quoting Duarte, supra, 24 Cal.4th at pp. 610-611.) In the instant matter, the People have not pointed to the record where the prosecutor ever established that William M. was unavailable to testify at trial. Indeed, in his opening brief, Lee emphasizes this foundational requirement under Evidence Code section 1230, and the People simply ignore the argument. As there is no evidence in the record that William M. was unavailable at trial, William M.'s statements to Tomas S. were not admissible as declarations against penal interest. (See Grimes, at p. 711; Evid. Code, § 1230.) Thus, it was error to admit Tomas S.'s testimony about what William M. told him.
During oral argument, the People conceded that the trial court erred in admitting Tomas S.'s testimony about William M.'s statements.
If admission of the hearsay statements violated a state statute alone, we apply the standard articulated in People v. Watson (1956) 46 Cal.2d 818 (Watson), and reverse only if there is a reasonable probability of a result more favorable to the defendant in the absence of the error. (Duarte, supra, 24 Cal.4th at pp. 618-619 [Watson standard applicable to state law error in admission of hearsay].) If, on the other hand, the error violated an appellant's confrontation clause rights, we must determine whether the error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.) Here, Lee does not argue Chapman error applies to his claim. Instead, he asserts the trial court's error warrants reversal under Watson. The People argue any error was harmless. We discuss this error in the cumulative error section below.
III
EXPERT'S TESTIMONY ABOUT TOMAS S.'S DEMEANOR
A. Lee's Contentions
Lee maintains the trial court erred in permitting the prosecution's gang expert witness to vouch to Tomas S.'s credibility. We agree.
B. Background
Tomas S. testified that he could no longer go back to the west side of San Bernardino. He indicated that he could be killed for testifying about other gang members' activities. Tomas S. stated he was fearful of the consequences of his testimony, and he believed gang members were presently looking for him. Over Lee's counsel's objection, the prosecution's gang expert was present in the courtroom during Tomas S.'s testimony.
Later during the trial, the expert testified that if a gang member shoots a rival gang member in front of members of the public, it would benefit the reputation of the shooter's gang by putting fear into the victims. When asked if he observed "some of that fear evidence in some of the witnesses called for this case," the expert replied, "It is common in every gang crime to get cooperation from victims, witnesses, during any kind of gang related event, especially coming to court." The expert agreed that it is "absolutely, extremely difficult," to get gang members to "talk about what they've been up to." He stated that the penalty for a gang member coming forward and speaking about a crime "could be a very severe beating all the way up to include death." The prosecutor asked the expert about "what [Tomas S.] did in court, coming here and saying things we heard, what would the gang look at that like?" He responded, over Lee's counsel's hearsay, relevance, and speculation objections, that the gang would, "not like it at all to have a member testify against another member." The expert then stated, "It was also very apparent that [Tomas S.] was afraid to do it by his demeanor up here at the bench." He testified that a snitch could suffer severe penalties, including death. He noted that if Tomas S. returned to his gang's territory, he could get shot.
C. Analysis
A gang expert may testify on the culture and habits of criminal street gangs. (People v. Gonzalez (2006) 38 Cal.4th 932, 944; People v. Ward (2005) 36 Cal.4th 186, 210-211.) For example, a gang expert may render a general opinion regarding the gang practice of intimidating any gang member willing to testify at a criminal trial. (Gonzalez, at pp. 944-945.) From this kind of gang culture testimony, a jury may infer that a particular gang witness who has changed his story is lying. (Id. at p. 947.) However, an expert witness may not testify about a specific witness at trial and ultimately offer an opinion about his or her credibility. (See People v. Vang (2011) 52 Cal.4th 1038, 1047 (Vang) [" 'Obviously, there is a difference between testifying about specific persons and about hypothetical persons.' "].)
We see little difference between an expert witness offering an opinion that states that a specific witness was afraid to testify and thus telling the truth during his testimony and offering an opinion as to the guilt of a defendant. "A witness may not express an opinion on a defendant's guilt. [Citations.] The reason for this rule is not because guilt is the ultimate issue of fact for the jury, as opinion testimony often goes to the ultimate issue. [Citations.] 'Rather, opinions on guilt or innocence are inadmissible because they are of no assistance to the trier of fact. To put it another way, the trier of fact is as competent as the witness to weigh the evidence and draw a conclusion on the issue of guilt.' " (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 77.)
Here, the expert's opinion that Tomas S. was afraid to testify was not helpful to the jury. The jury is as competent as the expert to weigh the evidence and determine if Tomas S. was credible. Indeed, this is the jury's role. (See People v. Jones (1990) 51 Cal.3d 294, 314 [At trial, "it is the exclusive province of the . . . jury to determine the credibility of a witness and the truth and falsity of the facts on which that determination depends."].) Thus, we determine that the trial court abused its discretion when it allowed the expert to testify directly that Tomas S. was afraid to testify against Lee.
The People argue that even if we find the trial court erred in allowing the expert's testimony about Tomas S.'s demeanor while testifying, any such error was harmless. We discuss this error in the cumulative error section below.
IV
EXPERT WITNESS'S TESTIMONY THAT LEE COMMITTED THE CRIME FOR
THE BENEFIT OF A CRIMINAL STREET GANG
A. Lee's Contentions
Lee asserts the trial court erred by allowing the prosecution's gang expert to opine that Lee committed murder "for the benefit, at the direction of, or in association with the criminal street gang California Crips for the specific purpose of . . . promoting, furthering, or assisting in criminal conduct by its member." The People argue, under People v. Valdez (1997) 58 Cal.App.4th 494 (Valdez), the court did not err. Lee has the better argument.
B. Background
The prosecution's gang expert witness testified that, based on his investigation, the victim in this case was a Delmann Heights Blood gang member. He also believed that Lee was a member of the California Garden Crips.
The expert testified that the California Garden Crips gang uses violence to further and protect its reputation. He observed that there was a "gang war" occurring between Delmann Heights Bloods and the California Garden Crips. He further testified that California Garden Crips members "definitely" would retaliate if one of its members was killed. In addition, the prosecutor and the expert engaged in the following exchange:
"Q Based on your background, training, and experience, do you have an opinion as to whether or not the crime in this case, murder, was committed for the benefit, at the direction of, or in association with the criminal street gang California Garden Crips for the specific purpose—
"[Lee's counsel]: I will reserve my legal objection.
"THE COURT: Let him finish the question first. The objection is noted.
"Q —for the specific purpose of promoting, furthering, or assisting in criminal conduct by its members?
"A Yes, I do.
"Q What does that mean?
"A This is the epitome of gang related crime, both at the association with other members as well as to promote the criminal street gang,
the California Gardens, against a rival and known rival, Delmann Heights Bloods.
"Q You said 'epitome' of gang crime?
"A This is a gang crime. There's—in my career there have been crimes where they may have been gang related, whether it be a victim is gang related, a suspect is gang related. This crime happened strictly because one side was California Garden Crips, the other side was Delmann Heights Blood.
"[Lee's counsel]: Your Honor, I have to object, motion to strike the answer as a legal conclusion on the part of the witness. It goes to the ultimate fact in this case and is invading the jury's province.
"THE COURT: Overruled."
The expert then testified that the murder promoted and/or benefited the California Garden Crips. And, over an objection by defense counsel, the expert opined that Lee's status within the California Garden Crips "did increase."
Later during the expert's direct testimony, the prosecutor asked him, "just hypothetically in your experience as a gang officer, if a gang member goes out and shoots a rival gang member in front of various people from the public, does that benefit the reputation of that shooter's criminal street gang?" Over Lee's counsel's objection, the expert responded that "[i]t would benefit the status of that member amongst the people he was with, which in turn would kind of resonate with the criminal street gang. It would also strike fear in the victims of the opposing criminal street gang."
C. Analysis
Lee contends the expert's testimony was improper under Vang, supra, 52 Cal.4th 1038. In that case, our high court addressed the propriety of gang expert testimony. At trial, the prosecution relayed a set of hypothetical facts tracking an assault that took place and asked its gang expert to opine on whether he believed the assault described in the hypothetical was committed for gang-related reasons. (Id. at pp. 1042-1043.) On the initial appeal, this court concluded that the trial court had erred in allowing such testimony, which we believed enabled the prosecution to circumvent the rule set forth in People v. Killebrew (2002) 103 Cal.App.4th 644 at page 647 wherein the court determined that an expert witness may not offer an opinion on what a particular defendant is thinking. (Vang, at pp. 1044-1045.) The California Supreme Court, however, disagreed. It held that the trial court did not err when it "permitted the expert to give an opinion whether an assault would have had a gang purpose in response to hypothetical questions. . . ." (Id. at p. 1049.) According to the court, such expert testimony regarding a hypothetical scenario, so long as it is " 'rooted in facts shown by the evidence,' " is generally permissible and can "support [a] jury's finding that [a] crime . . . [is] gang related." (Id. at p. 1045.)
Because the gang expert in Vang did not testify about the intent of the specific defendants, but "only responded to hypothetical questions," the Supreme Court did not endorse or reject the Killebrew court's conclusion that testimony regarding the gang-related intent of specific individuals is impermissible. (Vang, supra, 52 Cal.4th at p. 1048, fn. 4.) Instead, the court assumed for purposes of the appeal that such testimony was improper. (Ibid.) But the Supreme Court also explained in dicta that "in some circumstances, expert testimony regarding the specific defendants might be proper." (Ibid.) In support of this statement, the Supreme Court cited Valdez, supra, 58 Cal.App.4th at pages 507-509, an earlier decision in which the Court of Appeal had concluded that a trial court did not abuse its discretion by permitting a gang expert to testify that the specific defendants in that case had "acted for the benefit of" gangs.
Because our high court allowed the possibility that in some circumstances it could be proper for an expert to testify directly about a defendant's intent, we are left with varying and sometimes-conflicting conclusions on the admissibility of expert testimony regarding the gang-related motivations of specific defendants. (Compare People v. Williams (2009) 170 Cal.App.4th 587, 621 [court did not err by permitting expert to testify "that the [charged] crimes were for the purpose of benefitting the gang"] with People v. Perez (2017) 18 Cal.App.5th 598, 607 ["While a gang expert is prohibited from opining on a defendant's specific intent when committing a crime, the prosecution can ask hypothetical questions based on the evidence presented to the jury whether the alleged crime was committed to benefit a gang and whether the hypothetical perpetrator harbored the requisite specific intent."] and People v. Ewing (2016) 244 Cal.App.4th 359, 382 ["As the People concede and we agree, asking [the prosecution's gang expert] whether defendant specifically committed the alleged crimes for the benefit of the gang was improper."].)
In the instant case, the People contend that it is not necessarily error for a trial court to allow an expert witness to opine directly that a defendant committed a crime for the benefit of a criminal street gang. Moreover, relying on Valdez, supra, 58 Cal.App.4th 494, they suggest that the admission of an expert witness's opinion that the crimes of the subject defendant were committed for the benefit of that defendant's gang, without the use of a hypothetical, is within the discretion of a trial court. (See id. at p. 509.) We do not share such a broad reading of Valdez. Instead, Valdez presents a specific circumstance in which it was proper for a trial court to allow an expert witness to testify directly about a defendant's crime. However, Valdez did not create a bright line rule that such testimony is always permissible. Indeed, in citing Valdez, our high court observed that such opinion testimony is "proper" "in some circumstances." (Vang, supra, 52 Cal.4th at p. 1048, fn. 4.) Nevertheless, the court did not elucidate in what situations an expert may testify about the defendants themselves.
Although the People do not attempt to analogize the instant matter to Valdez, they do point out that, at trial, the prosecutor asked the expert to testify about Lee directly as well as respond to a hypothetical. In this sense, without any case law on point, the People imply that this "hybrid" approach was not improper. However, the fact that the expert opined directly about Lee's intent to benefit his criminal street gang is not obscured by a subsequent hypothetical question about the benefits to a gang after the shooting of a rival gang member. Indeed, except for describing the expert's testimony, the People do not explain why his testimony was proper under Valdez, supra, 58 Cal.App.4th 494 or Vang, supra, 52 Cal.4th 1038.
After Vang, the prudent approach in handling a criminal street gang expert witness would be to present a hypothetical based on the facts of the case and ask the expert to opine whether such a hypothetical crime would be committed for the benefit of a criminal street gang. (See Vang, supra, 52 Cal.4th at p. 1045.) The prosecution did not take this approach in the instant matter. Thus, Vang is no help to the People here. That said, the People are correct that the court in Vang did not announce a general rule that questions soliciting the opinions of a gang expert must be phrased hypothetically. Indeed, as we discuss above, the court contemplated that direct testimony about a defendant could be admissible "in some circumstances." (Id. at p. 1048, fn. 4.) Yet, the court did not identify those circumstances, but Valdez, supra, 58 Cal.App.4th 494 presented at least one example of when an expert's direct testimony about a defendant was admissible.
In Valdez, the appellate court considered whether a gang expert's testimony, not in response to hypothetical questions, was admissible. (Valdez, supra, 58 Cal.App.4th at pp. 503-504.) The facts of the case involved an unusual scenario: A group of individuals from seven different gangs united together to murder a rival gang member. (Id. at pp. 499, 503.) The appellate court assessed the expert's testimony based on whether it would assist the trier of fact under the circumstances of that case: "Under the circumstances, the questions of how such a diverse group, which, in [the gang expert's] opinion, represented seven different Norteño gangs, could have been acting for the benefit of a street gang and whether the participants were doing so presented matters far beyond the common experience of the jury and justified expert testimony. . . . Given the unique facts and [the gang expert's] expertise in evaluating the history, customs, and behavior of Hispanic gangs in general, and Norteño gangs in particular, we cannot say the trial court abused its discretion in finding that an expert opinion about whether the participants acted for the benefit of each and every gang represented by the caravan would be of assistance to the jury in evaluating the evidence and determining whether the prosecution had proved the enhancement allegation." (Id. at pp. 508-509.)
The facts here are not similarly unusual. To the contrary, the prosecution's expert's testimony underscored that this case was an ordinary gang case. Indeed, the expert testified that "[t]his is the epitome of a gang related crime[]" and "[t]his is a gang crime." Moreover, the expert emphasized the typical nature of the gang elements of this case: "This crime happened strictly because one side was California Garden Crips, the other side was Delmann Heights Blood." In other words, there were two rival gangs at war, where Lee was a member of one gang and killed the member of a rival gang. It was not complicated. Thus, the type of direct opinion testimony found acceptable in Valdez was not necessary or helpful to the jury here. And, because the instant action was such a generic example of a gang crime, it underscores the need to follow the tact of using a hypothetical that our high court approved of in Vang, supra, 52 Cal.4th at page 1045. Accordingly, here, the trial court erred in allowing the expert to testify directly about Lee's intent in committing homicide.
Again, the People argue that any error in allowing the expert to testify directly about Lee was harmless. We discuss this error in the cumulative error section below.
V
CUMULATIVE ERROR
Lee contends that even if no individual errors were prejudicial alone, the cumulative effect of multiple errors require reversal. When a defendant claims cumulative error the "test is whether defendant received due process and a fair trial." (People v. Kronemyer (1987) 189 Cal.App.3d 314, 349.) "[W]e review each allegation and assess the cumulative effect of any errors to see if it is reasonably probable the jury would have reached a result more favorable to defendant in their absence." (Ibid.) The cumulative effect of the errors discussed ante—the improper admission of William M.'s hearsay statements about the shooting, the expert's commenting on the veracity of Tomas S., and the expert's direct testimony about Lee's intent in shooting the victim—require reversal.
This is one of those rare cases where, simply put, there were too many evidentiary errors, undermining our confidence that Lee received a fair trial. We acknowledge that this case appears to be a quintessential gang case. The Delmann Heights Bloods and the California Garden Crips are rivals that were "at war" at the time of the subject killing. A member of the Delmann Heights Bloods killed a member of the California Garden Crips. In an apparent retaliation, Lee of the California Garden Crips allegedly killed Jamil T., a member of the Delmann Heights Bloods. With this foundation in mind, we agree with the prosecution's expert witness who testified this was "the epitome of gang related crime[.]" However, simply because a crime can so easily be explained as the product of gang violence, does not mean that we can cavalierly disregard evidentiary errors.
Here, there is some circumstantial evidence pointing toward Lee as the shooter. In the evening hours on the day Jamil T. was shot, Lee's cell phone was near the crime scene. After the shooting, there is evidence that Lee searched the internet for information about the shooting. Lee is a member of the California Garden Crips, and the victim was from a rival gang.
However, there is no witness who identified Lee as the shooter. There is no witness who can testify that he or she saw Lee at the crime scene at the time Jamil T. was shot. Lee did not own the murder weapon. There was no physical evidence on Lee indicating that he shot the AK-47 (e.g., no gun powder residue on his hands, his fingerprints were not on the gun).
Instead, the prosecution's primary evidence against Lee came from Tomas S., a fellow gang member and Lee's friend. Tomas S. testified at trial pursuant to a plea deal. He stated that Lee told him he shot Jamil T. with an AK-47. Tomas S. further stated that Lee told him the details of the killing, i.e., a fellow gang member flushed the victim out toward Lee who then shot him. However, some of the details Tomas S. testified that Lee told him do not match the actual aspects of the killing. Most importantly, Tomas S. claimed Lee bragged about shooting Jamil T. in the head, which "split his noodles" and Lee saw the victim's "brains come out." However, Jamil T. was not shot in the head. He was shot in the chest and died when the bullet struck his heart and both of his lungs. Thus, Tomas S.'s claim that Lee told him that he shot Jamil T. in the head does not necessarily support the conclusion that Lee was the shooter. Indeed, it could have caused the jury to question Tomas S.'s credibility or whether Lee was exaggerating his role in the shooting.
Tomas S. also bolstered his own credibility by offering the out of court statements of other gang members about the shooting. For example, as we discuss above, William M.'s, statements to Tomas S., which were erroneously admitted hearsay statements, corroborated Tomas S.'s claim that Lee confessed to the murder. In addition, Tomas S. explained that another member of the California Garden Crips admitted that he dropped Lee off at a certain location and then fired shots as a diversion to make the victim run toward Lee. However, there were no other gang members who testified at trial about the shooting. Instead, Tomas S. was the only witness who testified as to what the other gang members had said about the shooting. As such, it was essential to the success of the prosecution's case against Lee that the jury find Tomas S. credible.
We note that Lee's counsel objected on hearsay grounds to Tomas S. testifying about what this other gang member told him about the shooting. The court overruled the objection, stating that the testimony was admissible as a statement against penal interest. It is not clear from the record that the gang member who allegedly made the statement to Tomas S. was unavailable as a witness. In any event, Lee did not raise this issue on appeal; thus, we do not analyze whether the trial court erred in finding the testimony admissible under an exception to the hearsay rule.
We are concerned about the three evidentiary errors here because all of them bolster Tomas S.'s credibility. William M. statements about the shooting support what Lee allegedly told Tomas S.; thus, making Tomas S.'s testimony about the substance of his conversation with Lee more believable.
In addition, the expert witness's comment about Tomas S.'s demeanor further buttressed his credibility. After all, Tomas S. would not subject himself to retribution from the California Garden Crips simply to lie on the witness stand. To the contrary, he was violating the gang's code by speaking against a fellow gang member (Lee) and cooperating with law enforcement. Although Tomas S. testified that he was scared to testify at trial, we are nonetheless troubled that the expert witness essentially vouched for Tomas S. and told the jury that he found that Tomas S.'s demeanor on the witness stand showed that he was afraid. As such, the expert's testimony made Tomas S. more credible to the jury.
Finally, the expert witness's testimony that Lee killed Jamil T. for the benefit of the California Garden Crips further underscored Tomas S.'s version of events. In fact, by testifying directly that Lee killed the victim for the benefit of his gang, the expert was telling the jury that everything Tomas S. said was true. The murder occurred as Tomas S. described it; Lee had murdered Jamil T.; the prosecution had proved its case beyond a reasonable doubt. The expert was not opining about a hypothetical situation. Instead, he told the jury that Lee had killed Jamil T. for the benefit of the California Garden Crips and Lee's reputation in the gang increased. In reaching this opinion, the expert, who did not witness the subject crime, was testifying directly about the facts of the crime, further reinforcing Tomas S.'s testimony that Lee killed Jamil T. Put differently, the expert opined about the ultimate issue before the jury, and he did so in a manner that made Tomas S., the prosecution's primary witness, appear to be more trustworthy.
We understand that Lee was convicted of an odious crime. We appreciate that he is a gang member. Yet, these two factors do not change our analysis of the impact of the cumulative errors here. In the instant action, the three evidentiary errors went to the heart of the prosecutor's case in chief, specifically augmenting the credibility of the primary witness against Lee. We are not confident that the jury would not have reached a result more favorable to Lee in their absence. (See People v. Kronemyer, supra, 189 Cal.App.3d at p. 349.)
DISPOSITION
The judgment is reversed.
HUFFMAN, Acting P. J. WE CONCUR: HALLER, J. IRION, J.