Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County Nos. SCD160800 & SCD170638, John L. Davidson, Judge.
HUFFMAN, J.
After two jury trials, Brandon Lynell Price was found guilty of second degree murder (Pen. Code, § 187, subd. (a)), shooting at an occupied vehicle (§ 246), attempted robbery (§§ 211, 664) and assault with a firearm (§ 245, subd. (a)(2)). The jury also found true that Price had committed the murder and shooting at an occupied vehicle offenses for the benefit of a criminal street gang within the meaning of section 186.22, subdivision (b)(1) and that he was 16 years of age or older when he committed the offenses (Welf. & Inst. Code, § 707, subd. (d)(1)). The jury specifically found not true allegations that Price had personally used or discharged a firearm causing death or great bodily injury during the commission of those offenses (§§ 12022.5, subd. (a)(1); 12022.53, subds. (b), (c), (d)).
All statutory references are to the Penal Code unless otherwise specified.
As to the retried counts of attempted robbery and firearm assault, the jury found true the various personal use and discharge of a firearm allegations (§§ 12022.5, subd. (a)(1); 12022.53, subds. (c), (d)), but found not true the allegations that those crimes were committed for the benefit of a criminal street gang. The trial court sentenced Price to a total prison term of 28 years to life, which included the imposition of upper terms on the shooting at a vehicle, attempted robbery and firearm assault counts as well as the firearm enhancement to the assault.
Price appeals, contending his convictions for murder and shooting at a vehicle deny due process and must be reversed because they are not supported by sufficient evidence "once the uncorroborated accomplice testimony is set aside . . ." and because the jurors were given an illegal theory of conviction. He asserts his attempted robbery and firearm assault convictions should also be reversed as violative of his due process and fair trial rights because the testimony of his alleged accomplice Kevin Banks was coerced by the District Attorney's (DA's) control over the witness protection program, the trial court unreasonably restricted his right to cross-examine Banks in violation of his Sixth Amendment right to confrontation, and the prosecutor prejudicially vouched for Banks. Finally, Price claims the imposition of an upper term for any of his crimes and enhancements violated his rights to a jury trial as recognized in Cunningham v. California (2007) 549 U.S. 270 (Cunningham).
In his reply brief, Price abandons one of his appellate issues made in his opening brief, conceding that the trial court properly determined that the prior trial testimony of the victim of the attempted robbery and firearm assault could be read upon finding he was unavailable for trial and the prosecutor had made a showing of due diligence to procure his attendance.
We reverse Price's sentences for his attempted robbery and assault with a firearm convictions and his section 12022.5, subdivision (a)(1) enhancement attendant to the assault and remand the matter for resentencing in light of Cunningham error. In all other respects, the judgment is affirmed.
FACTUAL AND PROCEDURAL SUMMARY
On April 28, 2001, George Kassab, the owner and operator of Mr. D's, a liquor store on Market Street in San Diego, was shot in the shoulder by a masked Black man who ran out of the store after an apparent attempted robbery, jumped in a waiting getaway car and then sped off. A subsequent investigation revealed Banks had been the driver of the getaway car and Price was the suspected man who had entered the store to commit a robbery and had shot Kassab. Although Price was questioned about the incident on May 19, 2001, he was released without any charges.
On September 24, 2001, Price was arrested for questioning, and released shortly thereafter, about a freeway shooting at around 6:00 p.m. the day before, which occurred following a high speed chase involving alleged Lincoln Park (LP) gang members in one car, who fired shots at a car containing alleged rival Skyline Piru (Skyline) gang members, hitting 16-year old Anthony Newsome, who later died from a gunshot wound to his neck. The driver of the car from which the shots had been fired, Benjamin Oyeka, and two young men who were identified as being in the car, Ontarion Dodson and Jarius Bush, were also arrested and interviewed in connection with the freeway shooting.
During the subsequent lengthy investigation, a search warrant was executed at Price's home on October 30, 2002. Although police officers found no firearm or ammunition in his room, they found a bullet proof vest, numerous photographs of him and other LP gang members throwing gang signs, and a notebook containing gang-related drawings. When the officers told Price's mother they wanted to talk to Price who was not home, she called him and put a detective on the phone with him who told Price to return home so they could talk to him about Newsome's murder. When Price refused, District Attorney Investigator (DAI) Julio Barrios got on the phone and told Price the police wanted him to turn himself in. Price refused to return home or turn himself in. On May 9, 2003, Price was arrested in Tennessee based on a warrant for his arrest in connection with Newsome's murder and returned to California.
By the time of his return, Oyeka, Dodson and Bush had each entered into cooperating individual agreements with the DA's office with regard to the freeway shooting and Newsome's death, each having entered pleas of guilty to voluntary manslaughter. With regard to the incident at Mr. D's, Banks had pled guilty to attempted robbery and had served a stipulated two-year term at 85 percent before Price returned to California. Banks had also had several "free talks" with members of the DA's office and talks with DA investigators before testifying before the grand jury that issued the indictments against Price in this case. When Banks was paroled from prison in May 2004, he, along with his family, was put in the witness protection program.
Price's consolidated trial on all four charges and enhancement allegations arising out of the incident at Mr. D's and the freeway shooting commenced in May 2005. The jury returned guilty verdicts on the murder and shooting at a vehicle counts and their attendant enhancement allegations, but was unable to reach verdicts regarding the incident at Mr. D's. Retrial commenced in November 2005 solely on the Mr. D's charges and enhancements.
In our discussion below we separately set out the facts presented at each trial as pertinent to Price's contentions on appeal regarding the respective jury verdicts.
DISCUSSION
I
THE FIRST TRIAL:THE FREEWAY SHOOTING AND MURDER
Because Price's contentions of error involving the freeway shooting and murder concern only the evidence presented at the first trial, we set out those facts in considerable detail before addressing those issues. In doing so, we separately set forth the independent trial evidence from the accomplice testimony, which is crucial to our discussion of whether there is sufficient corroboration of the accomplice testimony under section 1111.
A. FACTUAL BACKGROUND
1. The Independent Trial Evidence
The Prosecution Case
To set the scene for testimony regarding the freeway shooting and for the alleged gang enhancements, San Diego Detective Bruce Pendleton, the prosecution's gang expert, testified about LP as a criminal street gang, identifying its primary crimes, which included murder, attempted murder, robbery, sales of narcotics, auto theft, witness intimidation, carjacking and vandalism. Pendleton noted that the LP gang had numerous subsets, including one called the "Murder Gang," and that members of such subset commonly committed drive-by shootings, several of which he had investigated and found to have been committed for the benefit of the gang. Pendleton stated that a gang member earned respect from fellow gang members by committing violent crimes.
Pendleton further testified about the rivalry between the LP gang and the Skyline gang, and described an incident he had investigated in which LP gang members went into Skyline gang territory and fired several shots at Skyline gang members. When the police responded to that incident, an LP gang member turned an AK47 on one of the officers. Several LP gang members were subsequently arrested for those crimes. Pendleton opined that he had investigated more LP shootings on Skyline gang members than the other way around.
Pendleton identified Price in court as a documented and tattooed LP gang member. He had contacted Price on May 19, 2001, in a car with Marcus House, another documented LP gang member, near the Bay Vista Apartments (Bay Vista). DAI Kenneth Freshwater also testified that he knew Price from previous investigations and knew him to be an LP gang member.
A Lemon Grove deputy sheriff then testified that on September 23, 2001 at around 6:14 p.m., he was called to a store's parking lot regarding a gunshot victim. When he arrived on the scene, he saw a young Black male, later identified as Anthony Newsome, lying on the ground behind a Nissan Altima sedan with a large gunshot wound behind his left ear, determined he had no pulse and then took responsibility to set up the crime scene for the start of an investigation.
Newsome, a football player at Morse High School, and his 13-year-old brother, S.H., had left their home in the Skyline area of San Diego the afternoon of the shooting with Laneich Duncan, a family friend, in her brown colored Altima to go to another friend's house. At that time, Newsome was in the front passenger seat and his brother S.H. was in the backseat. On the way there, Duncan, who was associated with an affiliate gang of Skyline, decided to drive into LP gang territory, to look for a girl named Mercedes whom she had seen the night before when Duncan had crashed a party given by Jarius Bush, a known LP gang member, at the Knox Glen apartment complex (Knox Glen) in San Diego. Apparently Newsome had been with Duncan in her car that night when people in front of Bush's party had yelled "Lincoln" and had thrown rocks at the Altima and another car driven by Skyline gang member Kevin Word.
As they were driving the day of the shooting, Duncan saw Word in his car and followed him to a gas station still in Skyline territory where they parked and talked with Bernard Benford, another Skyline gang member. Benford got into Word's car and they arranged to meet Duncan and Newsome at a nearby park after Benford went home to get his gun. However, on the way to the park, a Chevrolet Malibu driven by Benjamin Oyeka passed Duncan going in the opposite direction. When the Malibu made a U-turn, Duncan pulled her car over to the side of the street and Oyeka pulled up next to her, with his passenger side next to her driver's side. According to Duncan, words were then exchanged between Newsome and the passenger whom she did not know, with Newsome being asked, "What's up blood. Where you from?" She took these words as a challenge to fight by the passenger whom she observed had a name or some writing cut into his hair on the back of his head. When she told him they were not from anywhere, he called them punks.
As the Malibu drove away, Newsome told Duncan that he knew the passenger Ontarion Dodson from playing football, that he went by the name "Lil Dad," and that Lil Dad would not do anything. Duncan waited on the side of the road until she saw Word and Benford drive by. Because Word was having some car problems, he and Benford got into the back seat of Duncan's car and Newsome told them about what had just happened with the occupants of the Malibu. Duncan then began driving around. Within minutes they saw the Malibu make a U-turn at a stoplight and begin to follow them. Duncan panicked when she noticed there were now more people in the Malibu and started turning into side streets to try to lose the Malibu. At some point, she quickly pulled into a cul-de-sac so Newsome and Benford could switch places to enable Benford to be in the front seat in case he needed to use his gun. Newsome was now sitting behind Benford with Word sitting behind Duncan and S.H. sitting between Word and Newsome.
Although the people in the cars lost sight of each other for a while, the Malibu eventually began following Duncan again and a high speed chase ensued with Duncan ending up on the northbound 805 freeway. She estimated she was going 90 to 100 miles per hour as she weaved in and out of traffic with the Malibu following her. As her Altima approached the exit for the 94 east freeway, the Malibu pulled behind it and both cars got onto the off ramp for that freeway, which split into two lanes. As Duncan pulled into the right lane, the Malibu got into the left lane and pulled up alongside of her car. Several shots were then fired from the Malibu at Duncan's Altima.
Duncan exited the 94 freeway eastbound at College Avenue after discovering that Newsome had been hit. Before Duncan pulled into a parking lot and made calls to Newsome's mother and 911, Benford got out of the Altima and ran off. The others then took Newsome out of the car and laid him down, which was where he was found when responding police officers and paramedics arrived. Newsome died as a result of the bleeding from the gunshot wound to his neck.
Although several officers testified that Newsome died at the scene, testimony from the medical examiner revealed that he was revived at the scene but died the next morning in the hospital.
An examination of the Altima revealed that the rear driver side window had a hole through it and was shattered and there was a dent in the door below the window. A projectile was found between the panels of the door. The bullet recovered from Newsome's neck was subsequently determined to have been fired from a revolver.
San Diego Police Detective Patrick Lenhart testified about arresting Price on September 24, 2001 for questioning and then releasing him. Lenhart also told the jury about the execution of the search warrant at Price's home in October 2002, about the items found there and about talking with Price by telephone before handing the phone to DAI Barrios. Lenhart acknowledged on cross-examination that Price had told him the reason he would not return home at that time was because he and his family had been threatened.
A young man named Decoryius Jones, who knew Price, Oyeka and Dodson "Lil Dad," testified that on the late afternoon of September 23, 2001, he was outside his home in the driveway talking to a friend on the phone when he saw Oyeka and Dodson drive by, stop in the street and then make a U-turn and follow an Altima that had driven by. Although Jones believed there were either three or four people in Oyeka's car, he only recognized Oyeka and Dodson in the front seat and saw one person in the back, but could not recognize who that was. Jones got off the phone and got into a car with his friend to try to follow the other cars to see what was going on, but they lost sight of them. Jones also testified that sometime before the freeway shooting, some Skyline gang members tried to "start things" with Dodson during a football game between Morse High School, where Newsome attended, and Lincoln High School, and the police had to be called.
Bush's younger sister, Ashley, testified in the prosecution case that she did not see Price, Dodson or Oyeka on the day of the shooting. She stated she had been at a party at Kennedy Park that day but initially did not remember what time she had gone to or had left the party. She remembered seeing Bush there for a short time and that she left about an hour later than him after the party ended. When she walked home alone she saw her brother at the house and she did not leave her home again that night. Ashley was reluctant to testify and had received a text message on her cell phone that "scared" her from someone named Jamal before a preliminary hearing in this case that "they were going to kick my ass because I got on the stand and testified." Ashley had visited her brother at the DA's office in the presence of DAI Barrios in December 2004.
On cross-examination, Ashley testified that she had been at the party the day of the shooting from about 2:00 or 3:00 p.m. and that she had left at around 6:00 or 7:00 p.m.
DAI Barrios was called several times during the prosecution case to testify about his investigation regarding the shooting. He apprised the jury about talking with Price when the search warrant was served, and also about talking with him before he was released after being taken into custody right after the shooting. He additionally testified that Dodson, Bush and Oyeka had all said that Price was the shooter in the freeway killing.
Barrios also testified about his various talks with Ashley, first in August 2002, and then in December 2004. In 2002, Ashley told Barrios she had been at the party in the park from 2:30 p.m. until 6 p.m., that Bush had been there the whole time also, and that she had not seen Price or the others that day. When she came to the DA's office in 2004, Barrios talked with her again, going over her previous statements. She basically told him that her earlier statement was not the truth and explained that there was so much going on "on the streets, . . . too many people talking, and . . . she just wasn't looking for any more problems." She then told Barrios that Bush had not been at the party the whole time and that she had been with Mercedes and another girl when she saw Bush get in the Malibu with Oyeka and Dodson that day at the main gates or entrance to Knox Glen. When Barrios asked whether she had seen Price get into the car, she shrugged, crossed her arms, looked down and mumbled, "I don't know."
When Barrios talked with her a little later, Ashley told him about some text messages she had received, which she considered threats, calling her "a punk ass bitch" and saying "someone was going to fuck her up." She responded several more times that she did not know whether she had seen Price get in Oyeka's car. After Barrios interviewed another person and Ashley had spoken with Bush, Barrios again talked with Ashley that day. This time she said that she did see Price at Knox Glen that day and saw him get in the car with Oyeka, Dodson and Bush. She told Barrios she was now saying this because she did not want her brother to get in any more trouble; that "she wanted to do the right thing for [her brother]." She stuck by these statements even after Barrios told her that Bush had already pled guilty, had entered into a cooperation agreement and could not get into any more trouble.
On cross-examination, Barrios conceded that Bush had not yet been sentenced on his guilty plea at the time of the December 2004 talks with Ashley. Nor had Bush been sentenced yet at the time of Barrios's and Ashley's trial testimony on June 8, 2005. Barrios also acknowledged that he was aware that as of the December 2004 date, Bush had previously given conflicting statements to the police about his own and Price's involvement in the freeway shooting, essentially saying he did not know who was involved in the shooting.
Later in the prosecution case, during Bush's redirect testimony, the jury was played a widely circulated rap CD made by LP gang members called "Fuck Skyline," which included lyrics about guns, shootings, body bags, toe tags and other murder related topics against Skyline gang members.
Detective Pendleton also testified again regarding whether the freeway shooting was gang related. He opined that if an LP member is in a car with at least one other LP member, and that car chases a car filled with perceived Skyline gang members, and someone shoots from the LP car and kills someone in the Skyline car, then the crime benefits the LP gang by building up its name and showing it was not to be messed with. Pendleton further testified about several letters Price had written to other LP gang members while he was in jail pending trial, telling them that "they trying to really fuck me off over these lying ass niggas" and to "put clamps on that nigga's lips." Price also told other LP gang members in the letters that he thought it was funny that "those guys are testifying against [him]" and that it was not "ha-ha [funny], but 'that's bullshit.' " On cross-examination, Pendleton conceded that there was no bragging in the letters about any of the crimes for which Price was on trial and that he basically said he "didn't have nothing to do with that shit."
The Defense Case
Newsome's brother, S.H., who was a backseat passenger in the Altima at the time of the shooting, testified he had been riding in the car with Duncan and his brother earlier that day, when another car passed them and someone pointed at them. The other car then made a U-turn, pulled up next to the driver's side of their car, and the front passenger asked, "what's up" to Duncan and Newsome, which is a challenge to fight. When no one said anything, the other car drove off. Shortly thereafter Word and Benford joined them in Duncan's car because Word was having car trouble. As they continued driving around, the other car, which S.H. thought was a silver Altima, began chasing them. S.H.'s description of the ensuing chase tracked that of Duncan's, including the facts that Newsome and Benford changed positions in the car and the shooting occurred where the freeway "split apart" to go different directions on highway 94.
S.H. testified that he was able to see the other car shooting at them and that the shots came from the front passenger seat. When they discovered that Newsome had been hit, Duncan pulled off the freeway to get help. After Newsome died the next day at the hospital, S.H. went to a live lineup at juvenile court and provided additional statements to law enforcement. S.H. identified the person in position number five of the lineup as the shooter, and wrote on his card, "that's the guy who killed my brother." At that time all the people in the lineup had their hair cut. At the time of his initial statements, S.H. had told the investigating officers that the front seat passenger who had made the challenging statements and had shot at his brother with a small black handgun had something shaved in his hair, which he thought was the phrase "and 1."
At trial, S.H. identified a photograph of Dodson with his hair shaved to say "kind," as the front seat passenger who was the shooter. S.H. believed that the person was named "Jarvis" because his brother had said, "hey, that's Jarvis from Lincoln Park." S.H. also thought that someone named Lil Dad Dodson was sitting in the backseat of the suspect vehicle. Although S.H. appeared to be confused as to the names of the individuals he saw, he consistently identified Dodson in photos and the lineup as the front seat passenger who shot the gun at the Altima. He also described the front seat passenger as wearing big, shiny earrings, two cubic zirconia earrings in each ear.
During the investigation, S.H. had called DAI Barrios regarding an incident that occurred several months after the freeway shooting, telling him that while he was on his way to school with a friend, he was harassed by Price who was driving a Ford Expedition at that time. S.H. also told Barrios that Price was not the driver of the suspect car on the night of the freeway shooting.
A series of investigating officers additionally testified in the defense case regarding their interviews with S.H. about the shooting and the identity of the people involved. S.H. consistently told the officers that the front passenger with the writing in the hair, who he called "Jarvis," was the shooter and that he did not believe Price was the driver or in the car that night. S.H. told at least two officers that there was a girl in the back of the suspect car and that he could not identify the driver or one of the males in the back of the car.
One detective investigating the case testified about searches of Oyeka's home and car on October 3 and 4, 2001. The detective found a black nylon gun case and a green bandana during the search of the home. No items of evidence were found in Oyeka's car and none of the latent fingerprints taken from the car matched Price.
When DAI Barrios was called as a defense witness, he confirmed that Dodson had had engraved hair before it was cut off or shaved for a six-person live lineup, that Dodson was number five in the first live lineup shown S.H., and that S.H. had identified Dodson in that lineup as the shooter. When S.H. was shown a second live lineup, which included Price in the number four position, he did not pick anyone in that lineup as being involved in the freeway shooting. The second lineup was also shown to Duncan who picked out number two, a filler, as possibly being the driver of the suspect car, but she did not identify Price as being involved in the shooting.
On cross-examination, Barrios explained that Duncan had identified Dodson in the first lineup as the person in the suspect vehicle who had initially verbally confronted her, but she was not sure whether he was in the car at the time of the subsequent chase and shooting. Barrios was then permitted to testify on direct examination for the prosecution as to S.H.'s confusion in the interviews regarding the identity of the suspect car as an Altima rather than a Malibu, and regarding Price and the shooting. When Barrios asked S.H. on the telephone whether Price was involved in the shooting of his brother, S.H. said, "yes," explaining he had been hearing lots of things, with people talking to him and word on the streets. S.H. later called back and told Barrios that he was wrong and he was sure that "Jarvis" was the shooter. Barrios also noted that S.H. did not pick Oyeka out of a photo lineup he was shown as anyone involved with the suspect car. Barrios conceded that S.H. never said that Price was the shooter.
2. The Accomplice Testimony
Oyeka, Bush and Dodson each testified to his version of the facts tying Price to the freeway shooting of Newsome. Before doing so, each testified generally about knowing each other and Price through playing Pop Warner football or for Lincoln High School and about hanging out with LP gang members who were football players.
Oyeka, who had been 16 years old at the time of the freeway shooting, had the nickname "B.J.," and did not live in the LP area, testified he generally drove around in his Malibu with his close friend Dodson, who was known as "Lil Dad," had the words "young kind" shaved into his hair, and was younger than him.
The next day at around 12:00 or 1:00 in the afternoon Oyeka picked up Dodson and drove to Parkway Plaza Mall (the mall) to talk to some girls and do some shopping. There, they met up with Price, Bush and another man, and walked around for about 30 to 45 minutes before leaving to go to Kennedy Park. Dodson and Bush's older brother, who was an LP gang member, rode with Oyeka to the park where they mingled with a group of people there. After about 15 minutes, Bush, Dodson and Price left with Oyeka in his Malibu to go to Bush's cousin's house where some girls were supposed to be. While they were driving there, Bush called his cousin and learned that the girls were no longer there, so Oyeka just asked people where they wanted to go. He initially took Price to a friend's house, but then Price came back to the car and Oyeka dropped him and Bush off at the main gate of Knox Glen.
Then while Oyeka was driving Dodson to a place in Skyline territory, they passed a gold Altima driven by a female going the other way and Dodson said, "that's the car." When Oyeka noticed "a person . . . waving their hand out the window, like for us to come back[, he] turned around and went back to the car." Oyeka had seen the car parked outside at the party the night before. When Oyeka "rolled up" next to the Altima, which had stopped, he saw that there was a "guy," later identified as Newsome, in the passenger seat. Dodson, whose window was down, then exchanged words with Newsome, who according to Oyeka, said to Dodson, "you all bitch-ass nigga," called him another bitch, and then said "I want your fade," which means "a one-on-one fight." Dodson replied, "Whatever. You can have it." Oyeka then pulled away, telling Dodson he was going to go get Price and Bush to have extra people along in the car to be sure that "nobody jumped in" on the one-on-one fight. Oyeka had noticed the eyes of some people in the back seat of the Altima as the back window was rolled down "a crack," and assumed the people were males and that he and Dodson would be outnumbered if there were a fight at that time.
Oyeka then drove back to Knox Glen and picked up Price and Bush who were just walking out the main gate. Price sat behind Dodson and Bush behind Oyeka. As Oyeka started driving back toward where they had seen the Altima, he noticed Ashley, Mercedes and another girl off to the right hand side watching Price and Bush get into the car. Soon thereafter Dodson told Price and Bush about the Altima, how he knew the car from the night before and how Newsome wanted to fight him. Both Price and Bush seemed to react as if it were no big deal and they were there for back up. At that time Oyeka did not see anyone with a gun, and it was his intention just to find the Altima and let Dodson "handle his person problems. Well, fight [Newsome]."
As Oyeka was driving, he saw Jones, a football player he knew, in front of his house and stopped to ask him if he had seen a gold Altima. Before Jones could reply, the Altima drove by and Newsome waved his hand out the window again. Oyeka then turned to follow the Altima. At some point, he came up behind the Altima, which was still being driven by a girl, and began chasing it, first on surface streets at normal speeds and then faster when he followed the Altima onto the northbound freeway 805. After following the Altima for some time, and it did not appear to be stopping for a fight, Oyeka started to turn onto the highway 94 off ramp to go back home when the Altima cut over in front of him and "ended up on the 94 off ramp, too." Then as he got into the left lane of the off ramp, he glanced over and saw the Altima in the right lane slightly in front of him and the passenger with "a [chrome] gun out the top of the car," and Oyeka ducked. As he did so, "[Price] fired [three or four] shots to the gold Altima." Oyeka did not know of any shots being fired from the Altima.
Oyeka said he did not know Price had a gun until he saw him fire a black revolver with his arm extended out the window. Oyeka also saw Dodson duck down, but he could not see what Bush was doing. No one said anything after the shots were fired. Oyeka just continued to drive and later turned and asked, "what the fuck was that?" Nobody responded. Oyeka then drove in silence to Bay Vista and dropped Price, Bush and Dodson off before going home.
Oyeka did not call the police to report the shooting or tell his mother or anyone about it. Although he watched the news that night to see if anything were mentioned about a freeway shooting, nothing was. Oyeka did not know anyone had been shot until the next day when he went to school and was told the police wanted to talk with him and he should call his mother. He went home, called his mother, and subsequently retained an attorney and surrendered to the police. He initially refused to answer any questions by the police, even though he was aware that Dodson had already been arrested and had told the police what had happened. Oyeka finally told his version of the events at the time of his "707 hearing" at juvenile court to determine whether he would be tried for murder as an adult for being the driver of the Malibu. At that time, he denied he ever saw Price with the gun in the car.
Oyeka then explained briefly about having his case tried in juvenile court, having a "freetalk" with the DA's office, entering a cooperation agreement, and pleading guilty to voluntary manslaughter. In the agreement, Oyeka committed to testifying truthfully in court "to the best of [his] recollection." Oyeka understood that if he lied under oath he could be prosecuted for perjury, a new felony that would be a "strike" against him and send him to prison. Although the agreement did not provide a specific sentence for Oyeka's plea and testimony, he was incarcerated in juvenile hall for less than two years. At the time of trial, Oyeka had independently relocated outside of San Diego.
On cross-examination, Oyeka admitted he had testified at the juvenile court hearing that he had not seen Price shoot a gun from his car and that he was unsure whether Dodson had fired the shots. Oyeka also had told the DA's office that he never saw Price with a gun in the car and that Bush could have done the shooting. Oyeka conceded that he later learned that Dodson had told the police that Price was the shooter. The first time Oyeka said that Price was the shooter was in September 2002 after talking at the DA's office with a detective who pressed him on whether he had seen Price with the gun in the car. Oyeka testified he basically changed his mind to tell it like "it went down" because he felt he was "getting punished for somebody else['s] crime." Before that time, he testified falsely because he thought it was best for himself. Oyeka agreed that he did not get the manslaughter offer from the DA's office until after he said that Price was the shooter.
Bush, who had been an adult and LP gang member with the moniker "Tiny Sharp" at the time he was arrested on October 30, 2002 in connection with Newsome's murder, also testified as part of an agreement to cooperate he had entered into with the DA's office. Bush claimed the "Green Demons" clique of LP and stated that Price was in the "Murder Gang" clique. Bush explained that Bay Vista and Knox Glen were in LP territory and that Bay Vista was the social hub of LP where gang members usually met.
Before testifying about the specific events leading up to the freeway shooting, Bush provided general information about the rivalry between the LP and Skyline gang, discussed the CD called "Fuck Skyline" that had been put together by the murder gang clique, and talked about cruising Skyline territory trying to cause trouble between LP and Skyline. He agreed that some of the incidents involved guns and shootings, and that afterwards the gang members would brag about shooting people at Bay Vista to take credit and earn respect in the gang for "putting in work." Bush said that Price bragged to him sometime before he was locked up on this case about having participated in a shooting at a liquor store. Bush considered himself "a rider but not a shooter" in incidents involving Skyline.
Bush testified he was not aware of any altercation between LP and Skyline gang members at his September 22, 2001 party at Knox Glen or of any incident involving an Altima outside the party. The next afternoon, Bush went to the mall where he hung out with Oyeka, Dodson and others, but not Price. Bush later left the mall with several car loads of people to go to Kennedy Park, where LP gang members generally hung out, and where a big party was then taking place. Oyeka, Dodson and Price, among others, were with him at the party. Eventually, they decided to go to Bush's cousin's house in Oyeka's car to meet up with some other girls. When that fell through, Oyeka drove Price to a friend's house, but he returned to the car after talking with the friend and Oyeka drove Bush and Price to Knox Glen where they got out in front by the main gate. Although Bush and Price planned to just hang out and later go over to Bay Vista, Bush walked up to his house while Price stayed at the gate. After a short time, Bush walked back out to the main gate and saw Price talking with his sister Ashley, Mercedes, and two other girls. Just then, Oyeka and Dodson came speeding into the entrance in the Malibu. Bush estimated it was only about 15 minutes since Oyeka had dropped him and Price off at the main gate of Knox Glen.
Bush said he and Price hopped in the back seat "because [he] heard . . . Dodson telling . . . Price that he wanted us to come with him so that he could get his back while he catched a fade with some rival gang member from Skyline." Dodson explained that they had just seen the people who had challenged him to a fight and they had gotten into a shouting match and "banging on each other," throwing gang signs. Although he was "pumped up," Bush "was just keeping calm."
Bush then described the Malibu coming up behind the Altima at a stoplight and Oyeka following it through back streets in the area. At some point Bush saw the front passenger and the back right passenger switch seats. He also confirmed seeing Jones, and Jones starting to follow their car as they looked for the Altima. Bush said the people in the Malibu were "kind of anxious like [and a] few people might have said, 'let's get them.' " He denied having a gun with him, ever knowing that Dodson or Oyeka carried a gun, and did not know whether Price had a gun with him in the car.
Bush testified that when they eventually saw the Altima again, a chase began that led them onto the 805 freeway northbound. The freeway chase did not last long, with Oyeka's Malibu shortly coming up on the highway 94 off ramp, which split to either go toward downtown or to Fairmont. As Oyeka's car continued straight on the left side off ramp, the Altima veered to the right and around the corner onto the other off ramp lane to go the other direction on highway 94. At that point, Bush saw "a [chrome handgun] come out of the roof of the other car, and [he] ducked [to the left and closed his eyes]." The cars were almost parallel, with the Altima a little bit in front. Bush then heard four or five shots ring out from the back seat of the Altima. When he opened his eyes, he saw Price with "the gun[, a revolver,] on his lap." He also noticed the window was now down and then saw Price put the gun in his waist so it was covered by his clothing.
Other than Oyeka turning around and saying "what the fuck was that," no one said a word as Oyeka drove back to Bay Vista and dropped them off. Bush immediately walked alone to Knox Glen and had no conversation with the others. After he found out about Newsome's death, and the arrests of Oyeka, Dodson, and Price in the days following the shooting, Bush hid out at a cousin's home until the police, accompanied by Detective Pendleton, found him there almost a week and a half later. Bush had known Pendleton from over 20 field contacts regarding LP gang matters.
When interviewed about his involvement in the shooting, Bush lied to the police and detectives, denying he had done anything because he was scared, did not want to be a "snitch," and did not want "nothing to happen to my family." Bush was then released from custody until his October 30, 2002 arrest and the charges in this case were filed against him. Eventually Bush had a "free talk" at the DA's office on April 29, 2003. Knowing he was facing charges as an adult and that both Oyeka and Dodson had already entered cooperation agreements and were set to testify against him at his preliminary hearing originally scheduled for that day, Bush gave a full statement about his actual involvement in the freeway shooting. After a second free talk with the DA's office in May 2003, Bush was offered a plea to voluntary manslaughter with a six-year prison term in return for entering into an agreement to cooperate and "tell the truth on the Anthony Newsome murder."
Bush testified that he had begun experiencing threats to himself and his family after he agreed to cooperate. After telling DAI Barrios about his fear from the threats, Bush was put into segregation in the county jail.
On cross-examination, Bush conceded he had previously been involved in LP gang shootings and beatings of other people, but had never been prosecuted for those crimes. He also acknowledged that even though he hung out with Price, he was not close with him, and was closer friends with Oyeka and Dodson at the time of the shooting. Bush did not believe that the incident between the Malibu and the Altima was a gang thing, but thought it was only a personal matter between Dodson and Newsome. At the time of his free talks, Bush had expressed not wanting to spend the rest of his life in prison and knew that Dodson had already named Price as the shooter in the incident. Bush additionally conceded that he had asked his sister Ashley to lie for him before he was charged in this case.
On redirect, Bush extensively explained the meaning of the words on the CD that was played for the jury. He also explained that he only told his sister to say that he was at the party at the park "the whole time," which would have provided him with an alibi and that during the visit with DAI Barrios, he told her she need not lie anymore about seeing him get into the car or about Price getting into the car.
Dodson, who was 15 years old at the time of the freeway shooting, testified, like Oyeka and Bush, pursuant to an agreement of cooperation entered into with the DA's office. Before pleading guilty to voluntary manslaughter, Dodson had spent some time in custody in juvenile hall and from the time he was released until the time of trial had been living outside of San Diego County. Although Dodson had family members who were LP gang members, he denied he was one. Before turning to the events leading to the freeway shooting, Dodson explained the location of Bay Vista, Kennedy Park and Knox Glen, which were generally across the street and about a minute or two walk away from each other, and their relationship to LP.
On September 22, 2001, as he was leaving Bush's party at Knox Glen, Dodson saw a golden colored Altima and a Honda "CRX" drive slowly by "talking trash." He heard both angry male and female voices yelling things out the windows of the cars before he went home. He denied there was any incident involving rocks being thrown that night.
Dodson then testified similarly to Oyeka and Bush about going to the mall the next afternoon and then to Kennedy Park for a party, where they saw Price. Dodson left the party with Oyeka after less than an hour to "go hang out with [Bush] and his girl cousins and her friend." The plans, however, fell through. They then went someplace and stopped because Price wanted to go there. At some point they all left in Oyeka's car and drove to Knox Glen where Bush and Price got out. Then, as Oyeka was driving Dodson to a barbecue in the Skyline area, Dodson saw the same Altima and CRX driving by as he had seen the night before and someone waving at him from the Altima.
As Oyeka had already mentioned, he made a U-turn and pulled up to the side of the Altima. Bush then noticed that a girl was driving the Altima. Newsome, whom he knew from football and a previous confrontation, was the front passenger, and a "guy" was in the back. According to Dodson, the girl started "talking 'mess,' " meaning "trash talking, foul mouth," even though neither he nor Oyeka said anything. When she said she was either from Skyline or O'Farrell, Newsome just nodded his head and said, "Oh, this is Lil Dad." The encounter ended with "fighting or something," with someone mentioning "catch that fade." Oyeka then drove off, telling Dodson he was going to get Bush and Price, "just in case you fight, you won't get jumped."
Dodson's version of events then tracked that of Oyeka and Bush about Price and Bush getting into the Malibu at Knox Glen, about seeing Ashley, Mercedes and another girl standing by the gate, about telling Price and Bush about what had happened with the Altima as they started driving back into Skyline territory, about seeing Jones and some other people who followed them when they began following the Altima again, about people in the Altima switching seats, and about leaving surface streets and chasing the Altima onto the freeway as it weaved in and out of traffic. When the cars got to the 94 freeway and Oyeka's car pulled up behind the Altima in the left lane, it got into the far right lane, and "as we hit the junction, [with the Altima further ahead of the Malibu,] the other car pulled out a gun out the [front passenger] window [and Dodson] ducked down."
Dodson could not remember hearing shots from the Altima, but heard shots fired from behind him in the Malibu. He did not lift his head up until after the Malibu was off the 94 freeway ramp. Dodson never saw the gun in the car and did not hear anyone say anything after the shots. When Oyeka got to Bay Vista, everyone got out and Dodson ran home nervous and scared. He learned that someone in the Altima had been hit before he went to school the next day. He was arrested later that day and his mother was with him when he was interviewed by police about the freeway shooting.
At the time of trial, Dodson could not remember what he told the police at his interview but conceded he had not told the truth because his mother was there and he was scared. Afterwards, he was charged with murder in juvenile court and held in custody there. He subsequently had a free talk with the DA's office and entered the cooperation agreement to tell the truth in exchange for his plea and probation. He got out of custody on May 29, 2003. Because he thought Price was "a cool guy" who had always been nice to him, he then tried to contact Price's attorney to see if there was anything he could do to help, but he would not lie for him.
On cross-examination, Dodson was shown transcripts of his two interviews with the police on September 24, 2001, where he had told them that he had been in a three-way telephone conversation with Bush and Oyeka right after the shooting, and also that he had heard some shots coming from the Altima. Although he initially did not recall saying those things, he later said it may have been possible that he had heard some shots coming from the other car. He conceded that Bush and Oyeka were his closest friends during the summer of 2001.
Dodson also admitted that when he was first questioned, he was informed that someone in the Altima had identified him as the shooter in the incident. He did not remember telling the police at that time that Newsome was his friend and that he had not had words the day of the shooting. Dodson had later told investigators at the DA's free talk that there had been a confrontation between him and Oyeka and the people in the Altima the night of Bush's party and that it was the same Altima involved in the freeway shooting the next day. Dodson agreed that when he was charged with murder in this case he was concerned about the effect it would have on his ability to play football as a career.
DAI Barrios testified again to present additional statements that Dodson had made during his free talk on August 13, 2002, regarding the freeway shooting. Dodson had stated that right before hearing gunshots, he had heard the window behind him roll down and the sound of "rushing air or something to that effect." He then heard Price say to himself in a very low voice, "something to the effect of 'I think I hit somebody' or 'I think I shot somebody' or 'I think I hit him' or something . . . really similar to that." Right after that, Dodson heard Price say "something to the effect of 'I should have shot . . . the bitch' or 'I should have shot the girl.' " Dodson also told Barrios at the free talk that Price asked him to take the gun or hide it once they were dropped off at Bay Vista.
On cross-examination, Barrios acknowledged that Dodson was advised at the free talk that the DA's office was not pursuing charges against him on the theory that he was the shooter. The same advisement was also given to Oyeka during his free talk the next day.
With regard to the accomplice testimony, during closing argument the prosecutor stressed that although Oyeka, Dodson and Bush were "legally culpable and legally guilty of murder, . . . we sometimes have to use getaway drivers to identify the actual perpetrators. We sometimes have to use aiders and abettors, lookouts or other people to get the actual person who pulled the trigger. That's what happened in this case." The prosecutor told the jury that even if they did not like Bush, Dodson or Oyeka, "if you believe them when they told you that Brandon Price did the shooting and not Ontarion Dodson, then the defendant is guilty of murder. [¶] And, once again, you can believe one of them and dismiss and take out the others' testimony and still come to that same conclusion. That's why you have all of the law and instructions on [accomplices]." The prosecutor argued that the accomplices' testimony, together with the gang evidence, especially the CD and testimony regarding Price's membership in the LP "murder gang," and Price's flight out-of-state and his letters sent to other gang members from jail, were sufficient proof he was the shooter on the day of the freeway killing.
Although the jurors returned verdicts finding Price guilty of Newsome's murder and shooting into a vehicle and that the crimes were committed for the benefit of a criminal street gang, they did not find that Price was the shooter.
B. CONTENTIONS
1. Sufficiency of the Evidence
Price contends there was insufficient evidence to sustain his convictions for murder and shooting at an occupied vehicle because they were based on the uncorroborated accomplice testimony of Oyeka, Bush, and Dodson, which is insufficient under section 1111 for conviction. He specifically argues that although there may be independent corroborating evidence that establishes the commission of those crimes, there was no such evidence presented tying or connecting him to the commission of those crimes. We disagree.
It is uncontested that Oyeka, Bush and Dodson were accomplices as a matter of law because they were "liable to prosecution for the identical [murder and shooting at a vehicle] offense[s] charged against the defendant [Price] on trial in the cause in which [their] testimony [was] given" (§ 1111), and the trial court properly instructed the jury that they were accomplices. (See People v. Zapien (1993) 4 Cal.4th 929, 981; CALJIC No. 3.16.) A conviction "can not be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof." (§ 1111.) "The testimony of one accomplice[, however,] may not be used to corroborate the testimony of another accomplice. [Citations.]" (People v. Rios (1985) 163 Cal.App.3d 852, 870; see also People v. Rodrigues (1994) 8 Cal.4th 1060, 1132.) In other words, the "[c]orroborative evidence must come in by means of the testimony of a nonaccomplice witness. [Citation.]" (People v. Fauber (1992) 2 Cal.4th 792, 834.) For this purpose, the term "testimony" applies to both in court and out of court statements when used as substantive evidence of guilt. (People v. Andrews (1989) 49 Cal.3d 200, 214.)
In People v. Bunyard (1988) 45 Cal.3d 1189, our Supreme Court set forth the standard for reviewing the sufficiency of corroborating evidence:
" 'To corroborate the testimony of an accomplice, the prosecution must produce independent evidence which, without aid or assistance from the testimony of the accomplice, tends to connect the defendant with the crime charged. [Citation.] "The evidence need not corroborate the accomplice as to every fact to which he testifies but is sufficient if it does not require interpretation and direction from the testimony of the accomplice yet tends to connect the defendant with the commission of the offense in such a way as reasonably may satisfy a jury that the accomplice is telling the truth; it must tend to implicate the defendant and therefore must relate to some act or fact which is an element of the crime but it is not necessary that the corroborative evidence be sufficient in itself to establish every element of the offense charged." [Citations.] . . . "[T]he corroborative evidence may be slight and entitled to little consideration when standing alone." [Citations.]' [Citation.]" (Id. at p. 1206.)
To determine whether sufficient corroboration exists, the accomplice's testimony must generally be disregarded and the evidence of other witnesses examined to determine if there is any inculpatory evidence tending to connect the defendant with the commission of the offense. (People v. Shaw (1941) 17 Cal.2d 778, 803; People v. Falconer (1988) 201 Cal.App.3d 1540, 1543 (Falconer).) As the court in People v. Knight (1980) 111 Cal.App.3d 201 noted, "[c]orroborating evidence is sufficient if it substantiates enough of the accomplice's testimony to establish his [or her] credibility [citation]." (Id. at pp. 205-206.) Although corroboration may also be shown by circumstantial evidence and consist of evidence of a defendant's conduct or his declarations (People v. Douglas (1990) 50 Cal.3d 468, 506-507), such evidence must do more than raise a conjecture or suspicion of guilt--it must in some degree implicate the defendant in the commission of the crimes charged. (People v. Szeto (1981) 29 Cal.3d 20, 27 (Szeto).) "[U]nless [we] determine[] that the corroborating evidence should not have been admitted or that it could not reasonably tend to connect a defendant with the commission of a crime, the finding of the trier of fact on the issue of corroboration may not be disturbed on appeal." (Ibid.)
After searching the record in light of the above rules, we find there was slight corroborating evidence, which is sufficient to connect Price to the freeway shooting and murder of Newsome. Although there was no physical evidence implicating or connecting Price to the commission of the freeway crimes, and we do not believe that the bulletproof vest found in a search of Price's home more than a year after the shooting or the fact that a revolver was used to kill Newsome provide any link to tie Price to those crimes, there was independent corroborating evidence in Ashley's prior out-of-court statements made to DAI Barrios in December 2004 from which a reasonable jury could have inferred that Price was in Oyeka's car at the time of the crimes.
We do not restate the trial evidence already recited earlier in this opinion. (See pp. 3-30, ante.)
We recognize that none of the people riding in Duncan's Altima at the time of the shooting identified Price as an occupant of Oyeka's Malibu and that the independent witness Jones, who saw the Malibu while it was driving around could only identify Oyeka and Dodson as being in the car when it started chasing after the Altima. Jones stated he could not see who the people in the back seat of the Malibu were or determine whether there was more than one person in the back. We believe, however, that Ashley's prior out of court inconsistent statement that she had seen Price get in Oyeka's car with Oyeka, Dodson and Bush at the front gate of the Knox Glen apartments on the day of the shooting provides adequate corroboration for the accomplices' testimony identifying Price as the fourth occupant of Oyeka's car at the time of the freeway shooting. Although Ashley's prior statements did not contain a specific time factor, a jury could reasonably infer from them and her and Barrios's trial testimony that she saw Price getting into Oyeka's car with her brother near the time of the chase and the shooting. In her trial testimony, Ashley said she was unsure of the exact times, but thought she had been at the Kennedy Park party from 2 or 3 p.m. until around 6 or 7 p.m. She had told Barrios during a 2002 interview that she had left the party at around 6 p.m. Because the freeway shooting and murder occurred around 6 p.m. on that same day, Ashley's prior inconsistent statements were sufficient to connect Price, not only with the accomplices, but also with the crimes committed from Oyeka's car.
Although S.H. made general statements to DAI Barrios during telephone calls regarding the incident that Price may be involved, but was not the shooter, the statements about Price's involvement were vague and not made on personal knowledge but rather were based on what S.H. was hearing on the street, and do not place Price in the Malibu at the time of the shooting. As such, his statements to Barrios only raise some suspicion that Price was involved in the freeway shooting and are insufficient to corroborate the accomplices' testimony. (See Szeto, supra, 29 Cal.3d at p. 27.)
Contrary to the parties' representation that Ashley's statements to Barrios included her seeing Price get into the Malibu in the "afternoon," our reading of the record reveals that her statement was not that specific; she only agreed with Barrios that she had seen Price get into the car that day.
Moreover, the fact that there was evidence that arguably could show that Price had many opportunities to get in and out of the Malibu that day and might not have been in the car at the time of the shooting does not change our analysis. The effect of that evidence was essentially a matter for the jury to decide. The jury was entitled to weigh the evidence and credibility of the witnesses regarding such matter. We do not reweigh the evidence.
The nonaccomplice testimony showed that Oyeka's Malibu was observed driving through both LP and Skyline territory, stopping at residences, stores and parks while people got in and out of the car throughout the day before the shooting, and Ashley's trial testimony and earlier statements to Barrios denied she had seen Price on the day of the freeway crimes.
In addition, although susceptible to different interpretations, the jury could also infer from Price's refusal to return home to talk with a police detective or to surrender to DAI Barrios in telephone calls in 2002 and in leaving the state, that Price had a guilty frame of mind regarding the shooting and murder of Newsome. This evidence coupled with Ashley's statements placing Price in the car from which the fatal shot was fired near the time of the murder, tends to support the accomplice testimony that Price was the fourth person present in the car and participated in the murder.
Further, although not alone sufficient to provide independent corroboration tending to connect Price with the commission of the freeway shooting, the extensive gang evidence, which showed that Price was a documented LP member, that Newsome was associated with the rival Skyline gang, and that previous murder and car shootings often occurred between the two rival gangs, revealed an association between Price and Bush, one of the perpetrators of the crimes, and established a motive for a gang-related shooting and murder. (See Szeto, supra, 29 Cal.3d at p. 28.) However, even though there was no evidence presented that specifically tied Price to Newsome, that showed Price had a greater motive than any other documented LP gang member to participate in a classic "drive-by" shooting into an occupied car filled with rival gang members, or that he mentioned or bragged about the instant crimes or attempted to procure false alibi testimony via his letters from jail, once Ashley's statements provided the nexus between him and the crimes charged, the jury could reasonably infer from the gang evidence and his letters to other gang members that Price had the intent and motive to commit the crimes. (See § 1111; People v. Hall (1986) 41 Cal.3d 826, 833; Falconer, supra, 201 Cal.App.3d at p. 1543.)
In sum, there was enough independent evidence presented at trial to corroborate the accomplice testimony of Oyeka, Bush and Dodson and to establish their credibility on the identity of Price as the fourth person in Oyeka's car at the time of the shooting. Having found sufficient evidence to tie Price to the commission of the charged crimes, we conclude there was substantial evidence to support his convictions for murder and shooting at an occupied vehicle.
2. Illegal Theory of Conviction
During the conference on the proposed jury instructions, which the court had given the parties five days earlier to review, the court asked counsel to specify which instructions they objected to or did not wish to be given. After agreeing to delete certain instructions that defense counsel objected to, the court asked counsel whether he was requesting voluntary manslaughter instructions be included as a lesser included offense as well as self-defense instructions. Defense counsel replied affirmatively, opining that the court had a duty to so instruct based on the evidence in this case, which the court had just summarized as showing the two rival gang cars coming upon one another, words being exchanged, a challenge to fight made, followed by a high speed chase with everybody hyped for a fight, and a gun being flashed from the rival gang car. The court agreed to do so.
The prosecutor then requested the court to also instruct on the natural and probable consequences theory of aiding and abetting under CALJIC No. 3.02, using battery and breach of peace as target offenses, because the defense could argue that Price was not the shooter. Defense counsel did not want such instructions but needed time to research the issue to find some legal authority to back up his objection. The court noted it would consider the matter the next day and that defense counsel should be ready to address breach of peace (§ 415, subd. (1)) and battery as target crimes.
The next morning, when defense counsel objected that there was not sufficient evidence to support the giving of the natural and probable consequences instruction, because there was no evidence Price intended to encourage or assist anyone in the target crime or evidence that the jury could reasonably find that the crime actually committed by that other person was a natural and probable consequence of the specifically contemplated target crime, the court begged to differ. Although it did not find there was any evidence that there was a battery, the court found that there was "evidence that there was a breach of peace under [section] 16.260, which is challenge to fight or offensive words that would lead to a violent confrontation." The court explained that Price's own witness, S.H., had testified that he saw the people in the car chasing them, pointing at their car, laughing and making movements toward them which was "circumstantial evidence that everyone in that car that was chasing behind Mr. Newsome's vehicle was encouraging what was about to happen." Because there was an agreement to fight but no actual physical contact between the two parties in the cars, the court found there was only substantial evidence to give the breach of peace and not a battery for the target offense. The court stated, "[a]nd a natural and probable consequence when you have Lincoln and Skyline, in light of all the evidence that's been presented by the expert, is that . . . it would be reasonable for the jury to find that these two groups got together in a mutual place to fight, a gun is going to come out and somebody is going to get killed." The court believed that the prosecutor had the right to argue the theory in the alternative and that murder, manslaughter and discharging a firearm at another car could also have been target crimes.
Although the prosecutor understood the court's ruling regarding the battery, he still thought that assault and attempted battery could be target offenses because Price and his accomplices were chasing after the other car. Defense counsel asked that the court not give CALJIC No. 3.02 because of the merger doctrine for battery and assault and he did not think the court was correct with respect to the breach of peace. Counsel also requested that the court require the prosecutor to select one theory of liability and not be able to argue aiding and abetting as an alternative theory of liability for Price. In light of the defense evidence presented regarding third party culpability for the shooting, the court denied counsel's request to require the people to make an election regarding a theory of liability.
The court subsequently instructed the jury on, among other things, principals and aiders and abettors of crimes (CALJIC No. 3.00), aiding and abetting the commission or attempted commission of a crime (CALJIC No. 3.01), liability for natural and probable consequences as an aider and abettor (CALJIC No. 3.02), murder, manslaughter, and breach of peace (CALJIC No. 16.260). Under the aiding and abetting instructions, the jury was directed to reach a guilty verdict if it found the defendant was a direct perpetrator of the crimes or found him an aider and abettor of those crimes committed by the perpetrator. (CALJIC No. 3.00.) An aider and abettor was defined as one who, with knowledge of the unlawful purpose of the perpetrator, assists the perpetrator, by word or deed to commit a crime. (CALJIC No. 3.01.) With regard to the natural and probable consequences theory, the court instructed the jury:
"One who aids and abets another in the commission of a crime or crimes is not only guilty of those crimes, but is also guilty of any other crime committed by a principal which is a natural and probable consequence of the crimes originally aided and abetted. [¶] In order to find the defendant guilty of the crimes of murder or manslaughter as an aider and abettor, you must be satisfied beyond a reasonable doubt that: [¶] 1. The crime or crimes of murder, manslaughter, breach of peace were committed; [¶] 2. That the defendant aided and abetted those crimes; [¶] 3. That a co-principal in that crime committed the crime of murder, manslaughter, or the discharge of a firearm at an occupied motor vehicle; and [¶] 4. The crimes of murder, manslaughter, or the discharge of a firearm at an occupied motor vehicle was a natural and probable consequence of the commission of the crime of the breach of peace as defined in C[ALJIC No.] 16.260. [¶] In determining whether a consequence is 'natural and probable,' you must apply an objective test, based not on what the defendant actually intended, but on what a person of reasonable and ordinary prudence would have expected likely to occur. The issue is to be decided in light of all of the circumstances surrounding the incident. A 'natural' consequence is one which is within the normal range of outcomes that may be reasonably expected to occur if nothing unusual has intervened. 'Probable' means likely to happen. [¶] You are not required to unanimously agree as to which originally contemplated crime the defendant aided and abetted, so long as you are satisfied beyond a reasonable doubt and unanimously agree that the defendant aided and abetted the commission of an identified and defined target crime and that the crimes of murder, manslaughter, or the discharge of a firearm at an occupied motor vehicle was a natural and probable consequence of the commission of that target crime."
During closing arguments, the prosecutor's primary theory of liability for Price was that he was the perpetrator or shooter in the discharging of the firearm into the occupied vehicle that resulted in the murder of Newsome. Under this theory, the prosecutor argued that Dodson, Oyeka and Bush were aiders and abettors of Price because they aided and abetted him "to commit a crime and the natural and probable consequence of that crime result[ed] in the death of another." They had knowledge of the unlawful purpose of "looking for a fight" and "tracking down, hunting down Skyline gang members so they could fight." They encouraged the crime by getting into the car and backing up each other as they looked for Skyline members.
The prosecutor then asserted in the alternative that if the jury did not believe that Price fired the gun, he still would be liable as an aider and abettor for Newsome's murder. He argued that Price "got into that car knowing they were going to fight Skyline gang members. And what's a natural and probable result when gang members get together and fight, especially when you are armed with firearms? What's a probable result? Someone is going to get shot. And that's exactly what happened, ladies and gentlemen. He backed up, armed with a firearm. Anthony Newsome was murdered. The murder was a natural and probable consequence of that." The prosecutor noted that in the gang culture, a fight was not about someone using his hands, but was about shooting each other. He asked the jury to use an objective test regarding gang members ready to fight rival gang members and the violence and hatred involved in such circumstances. He argued the challenge to fight someone was a breach of peace, which was the crime they "were going out to commit." The prosecutor argued Newsome's murder was the result of this continuing crime of breach of peace, i.e., following the other car so they could engage in this fight.
During his closing argument, defense counsel offered no argument against the prosecutor's alternative theory. He merely asked the jury what could they say to the fact that the prosecutor in essence told them that if they did not believe his "three all-star witnesses" who said Price was the shooter, then they could use an alternative theory of aiding and abetting to convict.
During deliberations, after several readbacks of testimony, the jury sent a note (Jury Note No. 4) to the court, stating "our interpretation of [CALJIC Nos.] 8.30, 8.31, 3.02 and 3.14 are conflicting. Are we to infer that committing a breach of peace that leads to a murder is a 'natural and probable' result of that breach of peace?" With agreement of counsel, the court responded that "[I]t is for you the jury to determine whether CALJIC [Nos.] 3.02, 3.14, 8.30 and 8.31 appl[y] to the facts in this matter."
Subsequently, the jury sent a note to the court saying it could not agree on any counts. In response, another superior court judge sitting in for the trial judge asked the jury foreperson whether there was any information it might provide to help the jury reach a decision on any count. The foreperson said "possibly," regarding natural and probable and about "the natural and probable consequence of the '[breach] of peace led to the murder." The foreperson noted the jury also was having problems with CALJIC No. 3.02 and "whether we should consider that the murder, any murder charge, or that a murder that occurred is a natural progression from the [breach] of peace."
Out of the jury's presence, the court proposed that it get clarification as to whether the jury was having difficulty with a legal definition or a factual disagreement so that it would know whether it could then try to craft something if it were a legal explanation being sought. When the court then inquired of the foreperson "whether it was an issue of a factual lack of agreement as to whether the facts fit this law or whether it's an actual definition of the law itself," the foreperson replied, "Well, it might be a distinction of . . . two." When the court told the foreperson that it could not talk about the jury's discussions or the distinction between the jurors' determination of the facts and whether they agree or not in any way, but could define the term, the foreperson said that unfortunately the jurors could not agree.
After the court sent the jurors back into the jury room, the prosecutor suggested that the court let the jury go until the next day when the trial judge would return and counsel could then review the matter with him. After some discussion, the court brought the jury in and told them to return the next day at 10:00 a.m. when the trial judge would return and "attempt to find some ways to help you break your log jam."
The next morning the trial judge reviewed a transcript of the previous hearing and the prosecutor's written motion to modify CALJIC No. 3.02 to delete murder and manslaughter as target crimes in paragraph number 1 and to add discharge of a firearm as one of the charged crimes. The court tentatively agreed with the modifications and suggested it reinstruct the jury on CALJIC Nos. 3.00, 3.01 and 3.02 as so modified, explaining that they should not use CALJIC No. 3.02 if they determine that a person was a direct principal or aider and abettor and directly committed a crime because that person would not be an aider and abettor under the natural and probable consequences theory.
The prosecutor also wanted the court to modify CALJIC No. 8.74 regarding jury unanimity, to tell the jury it could still find Price guilty of murder even if some of them only found him culpable based on the natural and probable consequences theory of aiding and abetting while the others found him guilty as a direct perpetrator or aider and abettor.
Although defense counsel initially disagreed that the court should reinstruct the jury, saying "the slight error that is in [CALJIC No.] 3.02 regarding the number one there, which is the only part which I think is really relevant, I think it is pretty clear that the jurors are having a disagreement," he eventually conceded that the court's proposed modification and suggested statements were correct statements of the law. Nonetheless, defense counsel believed that the jury was actually telling the court that they could not reach a verdict because it was having factual problems and not problems with the law.
As to the modification of CALJIC No. 8.74, defense counsel agreed it was a correct statement of law, but argued that it would be more confusing for the jury since they did not ask any questions regarding that instruction. The court disagreed and, after further discussion, ruled it would reinstruct the jury on a modified version of CALJIC No. 8.74 as well as on CALJIC Nos. 3.00, 3.01 and 3.02 as modified. It would also read to the jury the following agreed upon explanation: "If you find factually beyond a reasonable doubt that the defendant was a principal who actively committed or attempted to commit the crimes of murder of the first or second degree or voluntary manslaughter or either was [a direct] aider and abettor to those specific crimes, CALJIC [No.] 3.02 would have no application. If, on the other hand, you find factually beyond a reasonable doubt that the defendant aided and abetted the target crime [of breach of peace] as defined in CALJIC [No.] 16.260, then you may consider whether or not, under all the circumstances of this case, CALJIC [No.] 3.02 applies or not."
The court then called the jury in and read to them the above instructions and comments as modified. The court reread the modified instructions when one of the jurors wanted them read again. As the jury was leaving to go back to the deliberation room, one of the jurors requested that the court give them "very specific written instructions" about what they had just heard. The court said to give it about 15 minutes. During that time, court and counsel haggled over the language of the written instructions regarding the modifications, and the jury sent in another note (Juror Note No. 6) asking, "Does 'the crime' (as opposed to 'a' crime) in [CALJIC No.] 3.00 refer to the target crime of 'breach of peace'?" Counsel agreed that the court should just send back its special explanation labeled "User. A." in front of reincluded CALJIC Nos. 3.00 and 3.01, then CALIC Nos. 3.02 and 8.74 as modified, without answering jury question number 6.
However, as to the language of "User. A.," defense counsel thought that a third paragraph should be added to state that if the jury did not find Price actually did the shooting or that he aided and abetted in the breach of peace then they should find him not guilty. The prosecutor believed that the first paragraph of User. A. should be modified to reflect the two different types of aiding and abetting, either as a direct aider and abettor of the crimes charged or as an aider and abettor of the breach of the peace. The prosecutor specifically proposed the first paragraph be amended to say " 'as the direct principal or direct aider and abettor defined in CALJIC [No.] 3.00'[, a]nd then the second sentence, 'was a direct principal,' which is the word that the court used in [CALJIC No.] 8.74, direct principal, 'or is the direct aider and abettor defined in CALJIC [No.] 3.00, then [CALIC No.] 3.02 has no application.' " The court agreed to add the changes suggested by both defense counsel and the prosecutor.
After the parties had a chance to review and agreed with the printed modifications to those instructions, they were provided to the jury for its deliberations that morning. The jury returned its verdicts later that afternoon.
On appeal, Price contends that the jury instructions and prosecutor's argument were erroneous in that they "were such that the jurors could, and probably did, convict him of murder and shooting at a vehicle using an illegal theory of conviction, namely, that he knowingly encouraged a proposed breach of the peace, and the murder and shooting were the natural and probable consequences of the proposed breach of the peace, even though the proposed beach of the peace never occurred." (Italics added.) Although Price concedes that the jury may have found a breach of peace committed when Oyeka's Malibu and Duncan's Altima pulled up next to each other on a public street and Dodson asked Newsome if he could "catch his fade," which Oyeka, Dodson, Duncan and S.H. all testified constituted a challenge to fight, citing People v. Perez (2005) 35 Cal.4th 1219 (Perez), he argues there was no evidence to support a further breach of peace at the time he was in the car to support the giving of CALJIC No. 3.02 on the natural and probable consequences theory of aiding and abetting. Price asserts that because the prosecutor argued he could be convicted of the shooting and homicide on the theory he aided and abetted a proposed breach of the peace rather than a completed breach of the peace, the jurors may have misunderstood the court's instructions in light of the improper argument and convicted him on a legally incorrect theory. Relying on People v. Guiton (1993) 4 Cal.4th 1116 (Guiton), Price claims reversal is required because there is no way to know from the general verdicts whether the jury based its verdict on the valid ground of direct aiding and abetting and there is a reasonable probability the jury convicted him based solely on the unsupported aiding and abetting natural and probable consequences theory. We conclude there was no reversible error.
Preliminarily, we note that to the extent Price claims the prosecutor committed error or misconduct in arguing the law on the natural and probable consequences theory in closing argument, such claim is waived. To avoid forfeiture or waiver of claimed prosecutorial error or misconduct, a defendant "must make a timely objection, make known the basis of his objection, and ask the trial court to admonish the jury. [Citation.]" (People v. Brown (2003) 31 Cal.4th 518, 553.) Because Price failed to do so below, he has forfeited this claim on appeal.
As to his claims regarding the aiding and abetting instructions, it is well established that "a person who aids and abets a crime is guilty of that crime even if someone else committed some or all of the criminal acts." (People v. McCoy (2001) 25 Cal.4th 1111, 1116-1117.) In Perez, supra, 35 Cal.4th 1219, our Supreme Court explained that "an aider and abettor's guilt 'is based on a combination of the direct perpetrator's acts and the aider and abettor's own acts and own mental state.' [Citation.] ' "[O]nce it is proved that 'the principal has caused an actus reus, the liability of each of the secondary parties should be assessed according to his own mens rea.' " ' [Citation.] Thus, proof of aider and abettor liability requires proof in three distinct areas: (a) the direct perpetrator's actus reus – a crime committed by the direct perpetrator, (b) the aider and abettor's mens rea – knowledge of the direct perpetrator's unlawful intent and an intent to assist in achieving those unlawful ends, and (c) the aider and abettor's actus reus – conduct by the aider and abettor that in fact assists the achievement of the crime." (Id. at p. 1225.)
With regard to aider and abettor liability for murder or another crime based on the natural and probable consequences theory, the elements have been stated as follows: " 'the trier of fact must find that the defendant, acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of a predicate or target offense; (3) by act or advice aided, promoted, encouraged or instigated the commission of the target crime. But the trier of fact must also find that (4) the defendant's confederate committed an offense other than the target crime; [fn. omitted] and (5) the offense committed by the confederate was a natural and probable consequence of the target crime that the defendant aided and abetted.' [Citation.] The issue 'is not whether the aider and abettor actually foresaw the additional crime, but whether, judged objectively, it was reasonably foreseeable.' [Citation.]" (People v. Vasco (2005) 131 Cal.App.4th 137, 161, original italics.)
Here, Price does not challenge as incorrect the modified instructions on aiding and abetting under the natural and probable consequences theory or CALJIC No. 8.74 which were given the jury. Rather, he merely contends that there was no evidence to support the trial court's giving of CALJIC No. 3.02 and that any reliance by the jury on such unsupported legal theory requires reversal under Guiton, supra, 4 Cal.4th 1116. Price appears to base his insufficiency assertion on the evidence he agreed to encourage or facilitate the actions of his accomplices only after the initial challenge to fight had been committed or completed before he got into Oyeka's car. (See People v. Montoya (1994) 7 Cal.4th 1027, 1039.)
Price, however, fails to appreciate that there was evidence in the record from which a reasonable jury could have found that a breach of peace by one of his confederates occurred or was being committed even after he entered the Malibu and they began chasing after the Altima. Both Duncan and S.H. testified that during the chase Oyeka's car pulled up near the side of Duncan's car where the occupants were observed to be gesturing at them. In considering whether to give CALJIC 3.02 in the first place, the trial court specifically cited to this evidence as providing "circumstantial evidence that everybody in that car that was chasing behind Mr. Newsome's vehicle was encouraging what was about to happen." Even the testimony of the accomplices supports the finding of some challenge to fight between the occupants of the two cars. Both Oyeka and Bush testified that the occupants of the Malibu were all "pumped up" wanting to get the people in Duncan's car and that they saw the people moving about and a gun come out of the top of her car pointed toward them while the cars were almost parallel. From the totality of this evidence, we conclude that the jury could reasonably infer that Price was in the car during the commission of a breach of the peace, i.e., a challenge to fight the people in Duncan's car. Therefore, the trial court correctly gave CALJIC No. 3.02 with breach of peace as the target offense Price intended to aid and abet.
Moreover, Price's reliance on Guiton is misplaced in this case. Because the legal theory of aiding and abetting under the natural and probable consequences was properly advanced, even if arguably it were factually invalid, absent an affirmative indication in the record that the verdict actually did rest on that inadequate ground, reversal is not required because a valid ground for the verdict remains, which Price himself has acknowledged, i.e., that he could be found to be a direct aider and abettor of the shooting. (See Guiton, supra, 4 Cal.4th at p. 1129.) Nothing in the facts, instructions, arguments of counsel, communications from the jury during deliberations, or verdicts in this case " 'affirmatively demonstrates a reasonable probability that the jury in fact found [Price] guilty [of second degree murder and shooting at an occupied vehicle] solely on [an] unsupported theory.' [Citation.]" (Perez, supra, 35 Cal.4th at p. 1233, citing Guiton, supra, 4 Cal.4th at p. 1130.)
Contrary to Price's reliance on the prosecutor's purported incorrect argument on the natural and probable consequences doctrine, which as noted above is waived on appeal, the record reflects that any problems or inaccuracies concerning the theories advanced by the prosecutor and the originally given instructions on the law were clarified by the trial court's modified instructions given after the jury expressed confusion on the matter during deliberations. We presume the jurors followed such instructions which Price's counsel conceded below were accurate statements of the law. No prejudicial instructional error has been shown.
II
THE RETRIAL: THE ATTEMPTED ROBBERY AND SHOOTING AT MR. D'S
Before turning to Price's claims of prejudicial error concerning his convictions stemming out of the attempted robbery and shooting at Mr. D's in April 2001, we set out the facts presented to the jury at the retrial or second trial.
A. FACTUAL BACKGROUND
1. The Prosecution Case
San Diego police officers responded to a call about a shooting at Mr. D's liquor store on Market Street in San Diego at about 4:30 p.m. on April 28, 2001, where they found the owner George Kassab suffering from a gunshot wound to his left shoulder and cheek. After police tried to take Kassab's statement, he was transported by ambulance to a hospital for treatment. On the way there, Kassab gave a brief statement about what had happened, saying that a Black man wearing a baseball cap had entered the store while he was helping a customer, the man jumped over the counter, and without saying anything the man "just shot him."
Shortly thereafter, San Diego Police Detective Johnny Keene arrived at Mr. D's to coordinate the investigation of the matter. In a walk through the store, he found blood on the floor, some clothing of the victim, and a .45 caliber round expended from the shell casing which was laying on the shelf behind the counter. He also collected a VHS tape from the store's video surveillance cameras, which was viewed and showed that a man with a white t-shirt entered the store, immediately jumped the counter and then jumped back and left the store. It also showed that the man had something tied around his head and face area. Several still photos were subsequently made from the tape.
While the crime scene was being processed by police, Keene obtained the license plate number of a car that had pulled away from Mr. D's and ran a record check on it. Armando Velasquez, had provided the information to the police after he had followed a car, a Mitsubishi Galant, leaving the parking lot of Mr. D's. Velasquez had been driving by Mr. D's with his cousins in the car when he observed a masked man in a white shirt and big black jacket with something in his hand, like a gun, running out of the store and toward the Galant in the parking lot with its brake lights on. Because he thought something might have just happened in the store, Velasquez made a U-turn and followed the car as it sped up to over 80 miles per hour and got on the freeway. After getting directly behind the car and getting the license number, Velasquez then slowed down and changed lanes to take an exit to go back to Mr. D's. As he did so, the other car pulled up next to him on the driver's side and Velasquez quickly turned and saw the driver and then noticed the front passenger who was leaning back in the seat, which was reclined. Velasquez was able to see the passenger's face when he turned and looked at him, making eye contact for a few seconds. The passenger was African-American, had his hair in braids and was wearing a long white shirt and black pants. Velasquez also got a good look at the driver's face when he turned and looked in his direction. The driver was a tall, dark-skinned African-American male, about 25 to 26 years old, with short hair. Velasquez provided all this information to the investigating officers at Mr. D's.
The record check of the license plate number came back as a Virginia license plate with a local address. Keene and several officers went to the address and set up surveillance to try to locate the Galant and its driver. Several days later, another car parked next to the Galant was stopped leaving the registered address and the young male front passenger, who was determined to be Kevin Banks, was detained, taken to the police station for questioning regarding the incident at Mr. D's and then arrested on May 2, 2001. The Galant was searched and fingerprints were taken. No physical evidence or known prints were found. A photograph taken at the time of Banks's arrest was placed in a six-pack photographic lineup and shown to Velasquez on May 3, 2001, who picked out his photo, which was number 3, saying "[h]is size and looks[,] look like the driver."
Keene subsequently obtained some additional information about possible suspects in this case, and talked with Detective Pendleton assigned to the gang unit for Lincoln Park about Price, telling Pendleton that if he came across Price, he would like to talk with him. Several weeks later, Price was detained and a photograph was taken of him and placed in another six-pack photographic lineup, which was shown to Velasquez on May 31, 2001. Velasquez initially pointed to photographs numbers 2 and 6, saying it was one of these two and then he narrowed it down to number 2, which was Price's photograph, saying it looked like the person that he saw in the passenger seat of the vehicle leaving Mr. D's. Velasquez was not sure of his identification of the passenger but was pretty sure. He thought photo number 2 was kind of similar to the passenger and more like the physical look of his face. Velasquez also told the police that he thought the Galant's passenger was the same person he saw running from Mr. D's, but he was not sure.
Keene had also interviewed Banks on May 2, 2001 after his arrest. Based on his statements, Keene interviewed additional people, including Brandon Hill, Marcus House and an Angelina. Keene had also questioned Price, who was very cooperative, on May 19, 2001, about the incident at Mr. D's. When Keene then confronted Banks with the results of his investigation, Banks became angry and refused to talk further with him.
Banks eventually pled guilty to the attempted robbery of Mr. D's and served 85 percent of a two-year term in prison. In November 2002, when Banks reported to his parole officer, a deputy district attorney (DDA) and an investigator with the DA's office contacted him about the possibility of testifying against Price. Banks refused to do so, saying he had done his time. At some point, Banks ended up with a parole violation and went back to prison. About 30 days before completing that time, he was brought back to San Diego to testify about the Mr. D's robbery. He was told by representatives of the DA's office that his appellate rights had run and he no longer had a right to refuse to testify. Banks had security concerns regarding himself and his family about testifying because of his affiliation with the LP gang. After testifying, Banks was returned to prison and when he was released on parole again in May 2004, he and his family were placed in the witness relocation program.
In the meantime, on April 14, 2004, Price was indicted on attempted robbery and firearm assault charges with regard to the April 28, 2001 shooting incident at Mr. D's. On November 14, 2005, jury trial commenced. In addition to the above evidence being presented to a jury, Velasquez stated he was unable to identify Price in court as one of the people he had seen in the Galant, and the prior edited trial testimony of Kassab, who was unavailable to testify at this trial, was read to the jury.
As noted earlier, the first jury had not been able to reach verdicts with regard to the Mr. D's incident. The trial judge and parties referred to earlier court proceedings when necessary, but were careful not to mention the first trial in front of the jury.
Kassab had owned and operated Mr. D's, which sold food as well as liquor, since 1982. On the afternoon he was shot, Kassab was behind the counter, with the register open, counting out change to two Hispanic customers who were buying a 12-pack of beer when a masked man quickly entered the store with a gun. The man jumped over the counter and held a gun to Kassab's head. Kassab, who could only see the masked man's eyes and determine that he was Black, smiled at the man, asked him not to shoot and told him to take whatever he wanted. With the case of beer still on the counter, one of the customers nervously said, "Hey, cabron, this is my beer. I buy it," and then pushed the masked man, took the beer and left the store. Without saying anything, the masked man shot Kassab in the left shoulder, jumped back over the counter and left the store without taking anything. Kassab pushed the alarm for the police, called 911, and they came "right away." One of the Hispanic customers told the police that the masked man had run to a waiting car after he left the store. Kassab spent two nights in the hospital for his injuries to his shoulder, which was stipulated to be a non life-threatening broken clavicle.
Before Banks testified at trial about the specifics of the attempted robbery of Mr. D's on April 28, 2001, he testified generally about who he was, how he had come to testify at this trial, and his relationship with Price. Banks was 24 years old, had grown up in the LP area of San Diego, considered himself a former LP gang member, was married and had "three and a half" children. He explained that he was currently relocated out of San Diego, he had been brought to court by DAI Barrios, he had spent about three years in prison for the attempted robbery of Mr. D's, he had spent another year in prison for domestic violence on his current wife, and he was in the witness protection program because he was testifying against another LP gang member and could not go back to the neighborhood as a "snitch." Banks further explained that it was common knowledge on the streets that LP gang members do not testify at all, regardless of the case. Banks acknowledged he had committed crimes, including the attempted robbery of Mr. D's, with other LP gang members, and said it was difficult for him to testify in this case against Price, another LP gang member with whom he hung out at the houses of other LP members, although they were not close friends.
Back in 2001, Banks drove a smoke gray Galant with Virginia license plates and wore his hair close to his head in a "fade." He admitted he was the driver in the April 28, 2001 attempted robbery and shooting at Mr. D's, and identified Price in court as being involved in the crimes with him, saying they had planned the robbery earlier that day at LP gang member Marcus House's home in La Mesa. Banks had raised the idea of committing a robbery because he and Price needed money, and suggested Mr. D's when they drove by the store because he had been there before. Banks parked and "scope[d] it out" for Price, who had a gun on him. After talking with Kassab, Banks went back to the car and told Price "there weren't nobody in the store."
Price then got out of the car and went into Mr. D's. Within three minutes, Banks heard a loud noise and saw Price getting into the passenger side of his car holding the gun. Banks then drove off. Price, who appeared scared and panicky, told Banks that the gun went off when the clerk tried to grab him and that the gun jammed. Price sat with his seat "laid back" while Banks continued driving onto the freeway and then to a friend's house.
The next day, Banks did not drive his car, but rather parked the Galant on the street outside his aunt's house because he had seen on the news that the police were looking for his car. He then gave his car keys to his cousin Brandon Hill, but told him not to drive it because of the incident at Mr. D's. Hill then locked the keys in the car.
Several days later, Banks was arrested and talked with Detective Keene about the attempted robbery at Mr. D's. Banks conceded he did not tell Keene the truth, but instead denied any involvement and switched the days on Keene, telling him that he had given his keys to his cousin on the day of the robbery, his cousin had locked the keys in the car and anyone could have taken his car. Banks lied because he did not want to get arrested. Despite the lies, however, Banks was arrested and charged with the attempted robbery of Mr. D's. When Keene talked with him again while he was in county jail, Banks would not tell Keene who committed the robbery with him because he did not want to cooperate with law enforcement and he did not think he could be convicted as he was only the driver and did not do the shooting or attempt to do the robbery. Banks's thinking changed after he talked with his attorney after his first court date.
Several months later while his case was still going through the system, Banks had a "free talk" with representatives at the DA's office, including DDA Mark Amador, his attorney and other people, who came in and out, to tell them what had happened at Mr. D's. Banks did not remember whether Detective Pendleton, whom he knew through LP gang contacts, was at the free talk. Banks had decided to talk because "the word was [that he] was snitching," his attorney said it would help him, and he was trying "to get out of [going to prison]."
Banks testified he essentially told the truth about the attempted robbery and shooting at the free talk, including that he was driving while Price went into Mr. D's, but that he had lied about his own involvement, saying he knew nothing about the crimes before Price came back to the car and told him what had happened. Banks acknowledged, as already noted above, that he ultimately pled guilty to attempted robbery, went to prison, and was paroled.
During the November 2002 meeting with his parole officer, DDA Amador and DAI Ken Freshwater had asked Banks additional questions about Mr. D's robbery. This time, Banks told them about his own involvement, i.e., that he knew there was going to be a robbery, and admitted that he had lied at the free talk about such point. Amador and Freshwater wanted Banks to testify against Price, but he refused, saying he was done with that and was concerned that the tape from the free talk might become public.
Subsequently, when Banks was almost through with a parole violation prison sentence, Freshwater contacted him again to drive him back to San Diego to go to court on another matter. After he was back at the county jail, he was taken to the DA's office and told that he would also be put on the witness stand to testify about the Mr. D's robbery and that he would have to testify. After this meeting, a visit was arranged for Banks to meet with his wife and children at the DA's office. Banks still did not want to testify because he had concerns about his LP gang affiliation, which he again expressed to the DA representatives. Afterwards, Freshwater transported Banks back to prison for his last 30 days on the parole violation term.
When Banks was released, DAI Barrios transported him back to a hotel in San Diego because he was then in the witness protection program. The witness relocation program "to move [him] out of San Diego" had been explained to him by "Barrios, Freshwater, everybody." His wife and children were also in the program, which set them up in an apartment with rent paid by Barrios, and provided money for food and incidentals. Although they had been in the program since May 2004, Banks had been back to San Diego twice other than to testify, once for his grandfather's funeral and another time for his son's football game.
Banks said that he was testifying at trial not because he was in the witness relocation program, but because he did not have a choice. He explained that the DA's office told him "they ha[d] more evidence in [his] case" and that he "was going to be called as a witness anyway." Banks felt he was forced to testify because "it was on videotape and just pressure." However, he did not feel as if he were pressured to come to court and lie, and had not lied about the fact Price participated in what happened at Mr. D's. At the time of his testimony, Banks's wife was actually back in San Diego working even though he was not. Banks said he no longer claimed LP as a gang member.
On cross-examination, Banks admitted that at the time he was charged with Mr. D's robbery, he had additionally been charged with doing another attempted robbery and a shooting with no gang allegations attached to any of the offenses. He also had previously committed three burglaries and three strong-armed robberies. Banks had earlier testified that he often "[s]tole wallets, chains, and watches, things like that" and that " '[i]f [he] liked it, [he] was taking it.' " At that time, however, he had denied he had committed any of the crimes in association with other LP gang members.
With regard to the incident at Mr. D's, Banks had formerly testified that he had driven to Mr. D's with the plan to go in, get some money and come out. He denied at trial, however, that he had gone into the store and shot Kassab and left without getting any money. Nor did he see any car chase him after leaving Mr. D's or come up next to him as he drove on the freeway. After an interchange of questions, Banks essentially conceded he had earlier lied when he testified he had believed he was not responsible for the attempted robbery of Mr. D's because he was not the shooter. He further admitted he had lied to Detective Keene numerous times during his May 2, 2001 interview and did not remember telling him certain things even after being shown the transcript of that interview, including that he was with House on the day of the incident at Mr. D's and that House gave him a ride to his girlfriend Angelina's home in Chula Vista that day. Banks lied because he was trying to avoid all responsibility for Mr. D's attempted robbery.
Banks also lied at the September 2001 free talk for the same reason. With regard to that talk, it was Banks's understanding his videotaped conversation with the DA's office would remain confidential if no agreement were reached and no agreement was reached. Banks further conceded he had told DA representatives in November 2002 and May 2003 that he would not testify about the Mr. D's incident even though he no longer had appellate rights, or the right to remain silent or refuse to testify at that time.
When Banks was brought back to San Diego in March 2004, he was staying in the county jail, had two interviews with the DA's office, on March 25 and 29, and testified in court in April. He denied he received any benefits from the DA's office in March 2004 or before. Banks did not consider his guilty plea to attempted robbery without a gang enhancement allegation or the visit at the DA's office with his family in March 2004, where he was able to have physical contact with his wife and children and eat food that his wife brought to him, benefits. Nor did he consider that he had received benefits by being moved out of county, by receiving $950 a month for food and incidental plus his rent for the last 18 months, or by staying in a hotel for four to six weeks while he was in San Diego to testify. Banks explained that he did not consider being in the witness relocation program and receiving all the purported benefits mentioned above were benefits "[b]ecause it's not something [he] wanted for [himself], [his] family, and everybody around [him]."
Banks acknowledged that DAI Freshwater had discussed the witness relocation program with him on the drive to San Diego from prison in March 2004, saying it was something he could possibly get. Although Banks had still not wanted to testify about the Mr. D's incident after his two meetings in March 2004 with the DA's office, when he then testified at the April 2004 hearing, he "had the expectation that [he was] going to be placed in the witness relocation program." Nonetheless, Banks denied that he had been promised the witness relocation or protection program before he gave that testimony.
However, after being shown a transcript from another proceeding in June 2005, Banks agreed that he had responded to a question of whether he had been promised anything or any benefits before testifying in April 2004, by saying, " 'if I testify, the witness protection program, that's about it.' " Banks also acknowledged that he had felt threatened during some interviews with the DA's office regarding his parole before he testified for the first time in this case in April 2004. Some of the members of the DA's office had advised him at those interviews that they had talked to his parole officer and were talking about violating his parole. It was Banks's understanding before he testified that first time, that if he did not work out a deal with the DA's office, he would be on his own, meaning he would not be in the witness protection program. He also understood that the DA's office wanted him to testify that Price participated in the Mr. D's robbery at that April 2004 hearing and that if he testified that Price had nothing to do with it, he would be "left out on [his] own," which he did not want to happen.
On redirect, Banks testified that no one from the DA's office had told him what to say during the September 2001 free talk, only that he should tell the truth and not exaggerate. Banks maintained he had told the truth when he said during that free talk that Price had committed the robbery at Mr. D's with him. Banks also said that no DA representatives at the November of 2002 or March 2004 interviews had told him to lie, but rather only told him to tell the truth about the incident at Mr. D's. Banks explained he had been angry about being brought down from prison to testify in this case because he just wanted to get on with his life and he did not want the videotape of his free talk to become public. Although the witness relocation program had been discussed in his interviews before he testified, he was not guaranteed or promised that he would be placed in the program.
Banks explained that he was told the DA was going to put him on the stand anyway, whether or not he wanted to testify, in essence saying "[c]ooperate and we can help you. Don't cooperate and we can't help you." He took "cooperate" to mean to "[g]et on the stand and tell the truth" and "don't cooperate" to mean just "[g]et on the stand, don't say nothing."
With regard to the March 29, 2004 interview, Banks said his overall attitude was that he did not want to testify and that he said certain things to try to keep from having to testify. Nevertheless, when he got on the stand in April 2004, he told the truth that Price was the shooter in Mr. D's. Banks also claimed he was telling the truth at trial about who committed the Mr. D's robbery.
On a series of recross and further redirect examinations, Banks admitted that he had previously testified under oath that he was promised the witness relocation or protection program before he testified in April 2004 and that he understood from his talks at the DA's office that if he testified, he would get the program. He also understood that the program had been mentioned to give him a choice to either testify and not get help, or to testify and get help for his and his family's protection. Essentially Banks stated many times that he was both promised and not promised the relocation program by the DA's office in March 2004 if he testified in April 2004, depending on who asked him the question.
DAI Barrios testified in the prosecution case that although he had not been present for Banks's free talk in September 2001 nor been involved in any of the March 2004 interviews with him, he had talked with Banks before his testimony in April 2004. That conversation took place in a holding cell at the DA's office, included DAI Freshwater, and basically concerned Banks's "cooperation and his testimony in the case and some of the concerns he had." Banks expressed concern for the safety of his family in general at that time and the witness relocation program was explained to him, but not promised. Barrios told Banks that he and his family might be eligible for assistance through that program if there was a legitimate fear or concern for safety.
Barrios then explained the program in general for the jury and the process of a threat assessment which was completed before anyone was accepted for placement in the program. No promises are made about being in the program until after an assessment is approved. Barrios had completed the assessment for Banks, looking at potential threats stemming from the crime itself and his gang affiliation, among other factors. Barrios believed that Banks's assessment was completed and turned in for approval after he had testified in April 2004. Banks was ultimately accepted into the program.
Barrios then testified in general about the type of assistance given a person in the relocation program, i.e., housing, rent, utilities, food, incidentals as well as any required travel arrangements. When a person is placed in the witness relocation program they are given instructions on their obligations to testify truthfully, to cooperate and maintain contact with the DA's office, to not commit crimes or return to gangs, and to not communicate or disclose their new locations. Because Banks was placed in the relocation program after he testified in April 2004, Barrios had transported him upon his release from his parole term back to San Diego and had then helped him and his family relocate out of county. All travel expenses were paid for Banks and his family as well as for their rent, groceries, utilities and incidentals. On cross-examination, Barrios provided reports for the benefits to Banks and his family, which showed they totaled over $30,000 from May 2004 to November 2005.
The parties stipulated at trial that on April 28, 2001, Price had been 16 years old and an LP gang member. It was also stipulated that "[a]fter April 11, 2002, Kevin Banks no longer had a right to remain silent or a right to refuse to testify about what happened at Mr. D's liquor store on April 28th, 2001, because his appellate rights had expired."
DAI Freshwater testified in the case in chief he had numerous contacts with LP gang members and knew both Price and Banks. At some point in 2001, Freshwater was assigned to work on the investigation of Mr. D's robbery and since that time has reviewed numerous reports and videotapes in the case, including the tape of the free talk in September 2001. He also interviewed Banks in November 2001 at his parole office to try to get him to tell the truth about what happened at Mr. D's. At that time, Banks told Freshwater that he was the driver in the incident, that Price participated in the attempted robbery with him, and that the robbery had been planned. Although Banks was cooperative, he would not agree to testify because he did not think it was safe to do so. Freshwater said that no threats or promises regarding the witness relocation program were made during that interview. Nor did he make any threats or promises when he talked again with Banks in May 2003 and tried to get him to testify in this case.
Freshwater then described in general for the jury what a free talk is and explained that its purpose was to have the defendant tell the truth. The next time Freshwater saw Banks was when he brought him down to San Diego from prison on March 24, 2004 to testify for a court hearing. He denied talking to him about the witness relocation program at that time. Freshwater then participated in audio/videotaped interviews with Banks, along with DDA Amador, on March 25 and 29, 2004. Banks was told at those times that he had no choice about testifying even though he did not want to testify. Freshwater denied, however, that either he or Amador had threatened Banks about testifying at the March 25, 2004 meeting. Freshwater just told Banks he would be put on the stand and to tell the truth.
The meeting on March 29 was to determine whether Banks had changed his mind about testifying. Freshwater could not recall whether the witness protection program was mentioned at that meeting but was certain that Banks was not promised the program at that interview. Freshwater remembered that Banks had expressed concerns about his family during the interview.
Freshwater again talked with Banks while he was in a holding facility at the DA's office in April 2004 before he testified. After Banks expressed additional concerns at that time, they discussed the witness relocation program, but no promises were made. Banks merely asked what it was and about the process and procedure to get into the program.
On cross-examination, Freshwater agreed that the videotaped free talk with Banks in September 2001 would remain confidential if there was no agreement with the DA's office, meaning no cooperating individual agreement reached between Banks and the DA's office. In other words, it would not be confidential if an agreement were reached. It was unknown at the time of that meeting whether an agreement would be reached. Freshwater admitted that on March 29, 2004, he told Banks, among other things, that he wanted his statement at the upcoming hearing to be the statement that he had made on the tape at the free talk.
Jarius Bush, an LP gang member who knew Price as another LP gang member and friend, testified that it was common for gang members to brag about their criminal exploits to gain status within the gang. Bush recalled one day, possibly in the summer of 2001, at the basketball courts at Bay Vista, where gang members hung out, Price had told him that Banks and he had robbed Mr. D's and that he (Price) had shot Mr. D because he had reached for a pistol. Bush said that LP gang members Desabian Powell and Jerome Silvels, among others, were also there at that time. Price told them that Banks had been the getaway driver. He also told them he had stolen the gun from Mr. D's. Bush conceded that he was testifying as part of his agreement to cooperate in exchange for his manslaughter conviction plea in another case and that he had not yet been sentenced for that case.
Detective Pendleton testified as the prosecution's gang expert, basically telling the jury about the LP gang, its colors, location, hangouts, and specific prior crimes and activities as a criminal street gang. He knew both Price and Banks as documented LP gang members and opined that the Mr. D's attempted robbery and shooting were committed for the purpose of benefitting a criminal street gang, LP.
2. The Defense Case
Among other witnesses, House, Silvels and Powell each testified in Price's defense. House, a close friend of Price's and documented LP gang member, testified that Price was at a barbeque at his uncle's house with him from noon until sundown on the day of the attempted robbery and shooting at Mr. D's. House also said that Banks lied a lot and had failed to repay a car loan. Banks was not with him at any time on April 28, 2001.
Silvels and Powell, also documented LP gang members, each testified that they had never heard Price say anything about committing a robbery or a shooting in front of Bush. Powell additionally stated that he never saw Bush hanging out at Bay Vista with Price.
Detective Keene, called as a defense witness, testified that Banks had told him when interviewed on May 2, 2001, that he had been picked up by House the day of the robbery, driven to Angelina's house and dropped off. While Banks was in custody on May 15, 2001, he called Keene to tell him that he had been the driver in the robbery of Mr. D's and that Price had been the passenger in his car with the gun.
B. CONTENTIONS
1. Claim that Bank's Testimony Was Coerced
Price contends that his attempted robbery and firearm assault convictions deny due process and a fair trial because the testimony of accomplice Banks was coerced by the DA's control over the witness protection/relocation program. In support of his assertion, Price relies on case authority regarding grants of immunity and plea agreements holding that " 'a defendant is denied a fair trial if the prosecution's case depends substantially upon accomplice testimony and the accomplice witness is placed, either by the prosecution or the court, under a strong compulsion to testify in a particular fashion.' [Citation.]" (People v. Allen (1986) 42 Cal.3d 1222, 1251-1252 (Allen); People v. Boyer (2006) 38 Cal.4th 412, 415 (Boyer); People v. Gurule (2002) 28 Cal.4th 557, 615 (Gurule).) Price asserts that the DA's control of entry into and maintenance of a person in the witness protection/relocation program, like immunity and plea agreements, is a means of coercion, which in this case placed Banks under a strong compulsion to testify in the manner the prosecution wanted him to testify in order to have him and his family placed and to stay in the program for their safety.
Price specifically argues that based on statements made to Banks by DA representatives at the two interviews in March 2004, concerning his testimony about the incident at Mr. D's at the upcoming April 2004 grand jury hearing and general comments about the witness protection/relocation program, as well as statements made to him during other law enforcement encounters, Bank's testimony at the grand jury hearing was unconstitutionally coerced. Because Banks was still in the program when he testified in this trial, Price claims the coercion continued with Banks being under a strong compulsion to testify consistently with his earlier statements that Price was the other robber and the shooter based on the benefit of being placed in the witness protection/ relocation program. Therefore, Price asserts he was denied due process and a fair trial and his convictions for attempted robbery and assault with a firearm plus their attendant enhancements must be reversed.
Price recognizes that our Supreme Court has held that a claim the coerced testimony of an accomplice was erroneously admitted is forfeited if not raised at trial (Boyer, supra, 38 Cal.4th at pp. 454, 457; Gurule, supra, 28 Cal.4th at p. 615) and concedes he did not raise the contention in either a pretrial motion or by way of an objection when Banks testified. Nonetheless, Price asserts this court should address the issue because we have a record of all the DA representative meetings with Banks before the grand jury hearing plus the transcripts of that hearing and both trials, there are no alleged disputes about the facts of any discussions between Banks and the DA representatives, the error in this case could not have been corrected even if raised below, and cases that have held the issue forfeited have generally proceeded to address the merits of the claim. Alternatively, Price reserves the right to pursue a claim of ineffective assistance of counsel regarding the matter by filing a petition for writ of habeas corpus.
We conclude Price has forfeited his right to contend on appeal that he was denied due process and a fair trial based on the admission of Banks's purported coerced testimony by failing to raise it below. (Boyer, supra, 38 Cal.4th at pp. 454, 457; Gurule, supra, 28 Cal.4th at p. 615.) Further, we decline to address the merits of his claim. Not only did Price fail to raise such issue, his counsel expressly represented to the court that he was not alleging any threats by the DA or his representatives, but only that Price felt threatened during the March 2004 interviews. Had Price brought a pretrial motion raising the issue of coercion regarding Banks's testimony, assuming the court had found any merit to the assertion, it could have excluded his testimony at trial.
2. Claimed Unreasonable Restriction of Right to Cross-Examine Banks
Price also contends his convictions for attempted robbery and firearm assault deny his Sixth Amendment right to confrontation, because the trial court unreasonably restricted his right to cross-examine Banks. Price specifically complains that the court improperly ruled that if he cross-examined Banks about his March 2004 interviews with the DA's office, that under Evidence Code section 356, the prosecutor would be able to introduce the complete interview transcripts in response, which contained much information irrelevant or prejudicial to Price. Price further claims that the court's expressed concern that Price's proposed questions to Banks tended to cast the DA's office in a poor light, and that if such were not limited, they might also open the door to the entirety of the transcripts being played to provide a balanced view of the DA's conduct with Banks was improper. Price asserts the court's various rulings and threatened rulings regarding cross-examination of Banks resulted in unreasonable restrictions in violation of his Sixth Amendment right to confront Banks. We disagree.
A. Pertinent Background
The record in this case reveals that there were extensive discussions outside the jury's presence regarding the extent to which Price's counsel could cross-examine Banks about the specific discussions in the two March 2004 interviews. Essentially, the prosecutor originally requested in limine that if Price's counsel cross-examined Banks regarding some of his statements made during the March 25, 2004 interview, that he be permitted to play the balance of the interview to put it in context. When defense counsel explained that he only wanted to ask about benefits to Banks and whether Banks felt threatened, the court said it would not allow the balance of the interview to be played. The prosecutor was concerned, however, with the problem of Banks denying he received any benefits or felt threatened and counsel then going to the transcript of the interview to impeach him.
After noting it had read the transcript of the March 25, 2004 interview, but not the one from the 29th, the court stated that if it contained similar statements, then there was an abundance of prejudicial information that would be inappropriate for admission and the court's intent would be to exclude reference to either one of the interviews in their entirety. The court felt counsel could adequately cross-examine Banks about what benefits he had received from the DA's office and whether or not he had felt threatened in any way without going into the specifics of those interviews. The court would revisit its ruling if counsel started getting into the specific statements on cross-examination. It explained, that although such ruling may constrain counsel, it was only attempting to prevent any prejudice to Price by counsel opening the door that could lead to the prosecutor being allowed to bring in either part or the whole of the interviews, depending on further Evidence Code section 352 discussions. When counsel asked whether impeaching Banks with what he had said at the first trial would open the door, the court replied "no," and suggested that that would probably be the best way to do it.
After a short time, defense counsel again brought up the subject, asking whether he could impeach with a statement in the previous trial that specifically referred to the March 25, 2004 interview and expressing confusion in knowing "where the line is." The court again explained that many direct questions would not open the door, but that specific questions as to exact quotes at the interview and Banks's exact responses to those would probably open the door. The prosecutor then brought up the issue of whether using specific references in the former trial transcript because they referred to the sections in the March 2004 interviews would be a problem, and the court agreed that it could be. The court wanted to review the transcript of the March 29th interview as well as the trial transcript regarding Banks's testimony before discussing the matter further the next day.
At that time, the court indicated with respect to the prior trial testimony of Banks, that certain questions would indeed open up the possibility of the prosecutor bringing in the balance of the March 29, 2004 interview to put it into context in light of accusations of any malfeasance in the dealings with Banks by the DA's office regarding threats or intimidation to have his parole revoked and certain promises. When Price's counsel started asking whether specific sections of the trial transcript would be proper or open up the playing of the entire transcript, the court said they could walk through each section when they had more time.
Later, after Banks had testified in the case in chief, the matter was revisited. The court reiterated it still had grave concerns about the March 25th transcript and/or videotape ever being played before the jury because of the references to the murder charges and the prosecutor's postulating of its various theories and proposed closing arguments. The court opined it would have to be redacted down to maybe one to three lines at most that could come in before the jury to prevent it from being too prejudicial to Price. The court noted that the transcript of the March 29th interview did not have the same prejudicial impact with Banks basically just being told to tell the truth and a few isolated statements by the prosecutor and DAI Freshwater that could be construed as prejudicial.
When the court asked defense counsel to try to confine his questions to Banks so as not to extensively go into the specifics of the March 2004 interviews, counsel said he did not want to go there, but rather only had six areas in the earlier trial transcripts from which he wanted to impeach Banks. After a break to permit counsel to confer on the matter, the court started going through each of those six areas to make a record. Although the court found it difficult to rule in a vacuum on the questions, it said it would permit impeachment of Banks with his statement that he was promised the witness protection program if he testified and that he had lied at the various interviews without opening the door to the March 29th interview. The court repeated, however, that if counsel alleged the DA's office "did some malfeasance and/or unduly pressed him or Investigator Freshwater did or they put [Banks] under pressure during the March 29th interview and they offered [him] improper benefits and things of that nature, you have opened the door to the March 29th interview." Further if counsel talked about the context of the interview and Banks's state of mind during the interview, such would also open the door to the prosecutor playing the entire tape to allow the jury to see what took place during the interview.
To save time, the court said it would rule that defense counsel could ask Banks anything except making allegations that Banks was pressured or given additional benefits or threatened by the DA's representatives and that only that area would open up the entire videotape of the March 29th interview. The court clarified, that defense counsel could get into those issues if he wanted to, but that if he did so, the prosecutor would have the right to put the matter in context by playing the entire interview.
Defense counsel responded that that was "fair enough," but he was objecting on Sixth and Fourteenth Amendment grounds, because he was not alleging threats, or saying that the DA threatened him, but only that Banks had testified at the last trial that he had felt threatened. The court recognized the fine line, stating it did not want to restrict counsel in his cross-examination, but it was still concerned about the prejudicial aspects of the interviews. The court asked both counsel to try to keep their questions to specific areas so that they would not have to open up the transcript, but noted that if they did so, then it would order the transcript redacted and played.
Defense counsel continued to press the matter, saying that in order to make tactical decisions for his cross-examination, which included possibly playing the whole tape himself, he needed the court to go through the 34 pages of the transcript for the March 29 interview and do the redactions at that time. The court wanted to wait until either there was an actual request by the prosecutor on rebuttal or defense counsel on cross to play the tape and then review it again before excising out what it thought was unduly prejudicial to Price to ensure his fair trial rights.
When counsel would not let the matter rest, the trial judge stated: "[W]e keep going from the forest back to the trees back to the forest again. . . . I have given you guidelines. You can use the trial transcript as you see fit, within my guidelines, as long as you don't go into, again, the state of mind, the setting, the threats or what took place during the March 29th interview. I am not going to allow the videotape to be played before this jury. [¶] If, in fact, I allow [the prosecutor] to play it because you have gone into those areas, I will then review the transcript with you, with [the prosecutor], to excise out those portions that I feel are unduly prejudicial to Mr. Price. That's all I will say on the issue, no more argument. That's it. So we are getting ready to bring the jury back in, and you can start your cross-examination."
Price's counsel then claimed his right to cross-examine Banks was being violated because he did not know what information the court would admit from the March 29, 2004 interview tape or transcript. Counsel thought it would be reasonable to take several hours to do that before he attempted to cross-examine Banks. The court disagreed, saying that the matter had been discussed ad nauseam, it had given guidelines, and counsel could choose to cross-examine as he pleased, but that its main concern was to make sure only probative information comes in and not prejudicial information to Price.
After cross-examining Banks for an afternoon, the court recessed early so defense counsel could discuss the court's rulings with Price regarding the tapes before any additional cross-examination resumed the next day. Before the jury was brought in the next morning, Price's counsel advised the court he had just filed a written motion pointing out the areas of the March 29, 2004 transcript that he wanted redacted because he had decided to go into the areas of the prior trial transcript, which the court had ruled would open up the playing of the March 29 interview. When the court noted such motion was premature because it had not yet ruled that the March 29 transcript was admissible, counsel indicated he disagreed with the court's tentative rulings that if he asked certain questions then the transcript would be open for admission by the prosecutor. After counsel again requested the court to go through the transcript and do the redactions before he started further cross-examination of Banks that morning, which was then joined by the prosecutor, the court noted it initially did not see any problem with defense counsel asking about the six areas in the trial transcript, but agreed to excuse the jury for the day and go through everything, including both March 2004 transcripts, the September 2001 free talk and a May 2001 interview, to determine what was going to be redacted or played.
During the subsequent discussions on the six sections of the trial transcript from which defense counsel wanted to cross-examine Banks, the court noted it was dealing with numerous hypotheticals depending on how Banks answered various questions on cross-examination and redirect, said it had no problem with counsel going into the timeline with Banks as to when he went into the witness protection program, but commented it had concerns about admitting the exact conversations with the DA's representatives before the grand jury hearing, which essentially were collateral issues because the jury already knew that Banks was in the witness protection program and would hear all about the benefits he was receiving from the program. Although the court had not found in its review of the various transcripts that Banks had been offered the program in exchange for his testimony, it did not have a problem with defense counsel asking Banks if he were promised that he was going to be placed in the witness protection program before he testified before the grand jury. The court said such question would not open up the March 29 transcript, but cautioned counsel not to go into all the statements made by the DDA during that interview as it would be an undue consumption of time. If Banks denied any promises, then defense counsel could use the trial transcript to show him he had responded differently.
Later, after counsel again met and conferred, and the noon break was taken, Price's counsel asked the court to permit him to cross-examine Banks regarding several statements on two pages that could be inferred as implied promises and threats from the March 25, 2004 interview. After further discussion, the court ruled that certain portions of those pages of the March 25 interview could be played after proper redaction if defense counsel asked his proposed questions.
As for the March 29 taped interview, the court ruled that if defense counsel decided to go into areas of the prior trial transcript that called into issue the intentions of the DA's office and malfeasance on their behalf with respect to their dealings with Banks, then the prosecutor would have the right to respond by playing the entire interview to give context to their discussions with Banks.
With regard to the prosecutor's request to have the free talk tape played, the court ruled that it would not be played, but that Detective Pendleton could be questioned with respect to any consistent or inconsistent statements by Banks during that interview in September 2001. As to the May 2001 taped interview between Detective Keene and Banks, the court also ruled it would not be played as both Banks and Keene had already testified and had been extensively cross-examined about Banks's statements at that interview.
The next day, Banks's cross-examination resumed and counsel asked him many of the questions for which rulings had been sought as to whether they would open the door to the prosecutor playing Banks's March 2004 interview tapes with the DA's office. On recross and further recross-examinations, defense counsel asked Banks additional questions about Banks's understanding of placement in the witness protection program if he testified and promises at the March 2004 interviews regarding the program before his April 2004 testimony. Neither the tapes or transcripts of the March 2004 interviews were admitted into evidence.
B. Relevant Law
The law is well established that "a criminal defendant states a violation of the Confrontation Clause by showing that he was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness, and thereby, 'to expose to the jury the facts from which jurors . . . could appropriately draw inferences relating to the reliability of the witness.' [Citation.]" (Delaware v. Van Arsdall (1986) 475 U.S. 673, 680 (Van Arsdall).) "However, not every restriction on a defendant's desired method of cross-examination is a constitutional violation. Within the confines of the confrontation clause, the trial court retains wide latitude in restricting cross-examination that is repetitive, prejudicial, confusing of the issues, or of marginal relevance. [Citations.] Thus, unless the defendant can show that the prohibited cross-examination would have produced 'a significantly different impression of [the witnesses'] credibility' [citation], the trial court's exercise of its discretion in this regard does not violate the Sixth Amendment. [Citation.]" (People v. Frye (1998) 18 Cal.4th 894, 946 (Frye).)
C. Analysis
After thorough review, we have found no unreasonable restriction of Price's right to cross-examine Banks in this record. As the above background shows, the trial court's rulings were basically tentative rulings or guidelines so Price's counsel, as well as the prosecutor, could make tactical decisions on how to cross-examine, and to conduct redirect of, Banks regarding his March 2004 interviews. The court essentially left it to each counsel to decide how to cross-examine and to conduct redirect examination of Banks based on how it was then hypothetically ruling regarding the proposed statements and how Banks might answer them. In the face of such rulings, defense counsel vigorously cross-examined Banks about his possible biases stemming from the application and acceptance into the witness protection program, the benefits he received, the pressure he felt to testify, and his perceived threats. That counsel chose not to ask certain questions or delve further into the specifics of the March 2004 interviews does not show that the court abused its discretion in making its tentative rulings or that it unreasonably restricted Price's right to confront and cross-examine Banks.
Nonetheless, Price argues in his reply brief that even if any restrictions on his counsel's cross-examination of Banks were "indirect" because the court was only ruling that it would possibly admit certain material in response to his counsel's questioning, such threats of admission had the prejudicial effect of precluding effective cross-examination of Banks. He also argues that the People's failure to address his appellate arguments regarding the court improperly ruling that Evidence Code section 356 would require admission of the entire interview, unredacted, to cast the DA's office in a better light should be deemed a concession that the court's rulings were improper and unreasonable in violation of his constitutional rights. These assertions have no merit.
As the record reflects, the trial court, fully aware that much of the information in the March 2004 interviews had been presented in the first trial as it had not been objected to, attempted to give the prosecutor and defense counsel advance rulings regarding objections to such information being admitted at the second trial to impeach or rehabilitate Banks as a witness. The court spent much time reviewing the actual tapes and their transcripts, heard numerous arguments and suggestions regarding each portion sought to be admitted, often changing its mind regarding a specific portion after hearing further argument. Defense counsel also changed his position several times during the course of the discussions, even suggesting one time that he might decide to play the entire tapes. Price selectively parses the record to support his claim of purported constitutional error and fails to appreciate that the court was not required to make a final ruling with regard to Evidence Code section 356 because the prosecutor did not seek to admit or play either of the March 2004 tapes.
Moreover, contrary to Price's argument that the court prevented him from showing any purported threats to or pressure on Banks arising out of the March 25, 2004 interview, the record reflects otherwise. The record shows the court carefully reconsidered its original position that none of the March 25, 2004 interview would be admitted and allowed the admission of the portions that Price's counsel wanted before the jury with proper redactions.
Price simply has not shown that the proposed excluded statements of cross-examination regarding Banks's cooperation ("if you won't cooperate, we can't help you") and Banks's statement of why he felt threatened about the DA's representatives mentioning his parole officer would have produced a significantly different impression of Banks's credibility, which was thoroughly tested before the jury at the second trial. (Van Arsdall, supra, 475 U.S. at p. 680.)
3. Alleged Vouching
During in limine motions, Price's counsel brought a motion to exclude DDA Amador, who had been the prosecutor at Price's first trial, from testifying at this second trial about his opinions that Banks had lied to him during free talks in 2001 and 2002, and that he was now telling the truth. At the hearing, counsel advised the court that because Amador was unavailable, Price's motion was directed at DDA Richard Monroy, whom the prosecutor had substituted as a witness for Amador, to testify about the process and procedures of the DA's office in handling free talks with defendants and the decisions to enter or not into cooperation agreements after the talks. Counsel argued that because the prosecutor proposed to have Monroy testify about the procedures in general, and not in regard to Banks, it was irrelevant and Monroy should not be permitted to testify on such subject. The prosecutor disagreed, stating that the free talk process and why a cooperation agreement is not entered were relevant to put the whole investigation into context as to how Banks ended up on the witness stand as a witness in this case.
When Price's counsel disagreed that a separate DDA witness was necessary to explain a free talk which would already be explained through Keene's and the DAI testimony of Barrios and/or Freshwater concerning the journey Banks has gone through from April 28, 2001 up until he testified, the court explained that its understanding was that DDA Monroy, who was he head of the gang unit, would only testify in general and not in specifics about Banks. The court noted that such was a "far cry from them saying, 'let me tell you about Mr. Banks and what happened with Mr. Banks's case, and in Mr. Banks's case we didn't give him cooperating status because we didn't think he was telling the truth, but we think he's telling the truth now.' [T]here won't be any attorney allowed to come in and vouch for another witness or an investigator or anybody else." Although the court did not see any initial prejudice in permitting DDA Monroy to testify in general about the free talk procedures, after further discussion, the court thought the best way to present such evidence was through an investigator who could testify about what a free talk is, what a cooperating agreement is, and what a threat assessment is in relation to the relocation process. It therefore ruled that it would not allow a DDA to testify about those processes to prevent any appearance of prejudice.
Later, before counsel gave their opening statements, the court admonished the jury that "the attorneys are not witnesses and, because the attorneys are not witnesses, you are not to consider any question or any statement made by any attorney as evidence in this case at any time." Shortly thereafter, during the prosecutor's opening statement, after the prosecutor explained what a free talk was and that one was conducted with Banks, who told law enforcement again that his co-participant in the course of the Mr. D's robbery was Price, but then lied about not knowing that Price was planning to go in and rob Mr. D's, the prosecutor stated, "[a]nd you're going to hear about the policy within the district attorney's office regarding free talks and individuals who aren't truthful during the course of those interviews." When the prosecutor then said, "[s]o as a result of Kevin Banks not admitting," defense counsel objected that such was improper argument based on the court's rulings. In response, the court immediately instructed the jury again that the statements of counsel are not evidence. Afterwards, the prosecutor stated in its timeline of events that Banks had not entered into a cooperating agreement and the robbery case against him proceeded.
Following opening statements, outside the jury's presence, Price's counsel made a motion for mistrial based on the prosecutor violating the spirit of the court's pretrial ruling that they were not going to get into the reason that Banks did not get a cooperating deal after the free talk in 2001 because he had lied. The court denied the motion, explaining that although the prosecutor had come close to crossing the line, he had not, and that the court had instructed the jury several times that counsel's statements are not evidence and should not be considered as evidence. The court did not believe that the prosecutor "was vouching for the credibility of Mr. Banks per se or what some other district attorney thought, which would have been a violation of [the court's] previous ruling with respect to the interviews and having another D.A. come in to say, you know, whether or not they believe Mr. Banks or did not believe Mr. Banks, which would be irrelevant then because that's up to the jury to determine whether he's believed or not."
On appeal, Price again claims that the prosecutor's above opening statements were an improper vouching for Banks, a government witness, because they essentially implied that Banks's testimony at this trial would now be truthful. Price contends that such vouching denied him due process and a fair trial. We disagree.
Preliminarily, we note that Price has again taken statements from the record completely out of context to support an assertion. During the brief opening statement by the prosecutor, at no time did he state that the DA's office had entered into a cooperation agreement, or any agreement, with Banks. The fact that Banks was in the witness protection/relocation program was not even mentioned by the prosecutor at that time.
Although it is improper for the prosecution to vouch for the credibility of a government witness (Berger v. United States (1935) 295 U.S. 78, 88; People v. Hardy (1992) 2 Cal.4th 86, 171), "[a] prosecutor may make 'assurances regarding the apparent honestly or reliability of' a witness 'based on the "facts of [the] record and the inferences reasonably drawn therefrom." ' [Citation.] But a 'prosecutor is prohibited from vouching for the credibility of witnesses or otherwise bolstering the veracity of their testimony by referring to evidence outside the record.' [Citation.]" (People v. Turner (2004) 34 Cal.4th 406, 432-433.) If the prosecutor's assurances on such matter are based on the facts of the record or reasonable inferences therefrom and not on " 'any purported personal knowledge or belief,' [his] comments cannot be characterized as improper vouching. [Citations.]" (Frye, supra, 18 Cal.4th 894, 971.)
Here, the prosecutor's opening statements were confined to the facts that would be presented at trial. He stated that Banks had lied at his free talk, that a DA representative would testify about the office's policy regarding such talks, that the DA's office had not entered into an agreement with Banks, and that Banks had eventually testified because he no longer had any appellate rights or the right to refuse to testify. Subsequently, Banks testified at trial that he had lied during his initial free talk with the DA's office, that he had not entered any agreement, and that he had testified because he no longer had any right to refuse to testify. DAI Barrios also testified in general about the policy of the DA's office regarding free talks. Thus, the prosecutor was merely reciting in the opening comments some facts that the jury would soon learn from Banks and Barrios and did not refer to anything outside the trial evidence or state anything to suggest that he had any independent knowledge that Banks would be telling the truth in his trial testimony. Under these circumstances, no improper vouching of Banks is shown.
Contrary to Price's assertion in his reply brief that mention of the DA's policy regarding free talks was going outside the record, the policy was testified about at trial and therefore is evidence in the record.
Moreover, even assuming the prosecutor's opening comments somehow amounted to improper vouching, the error would clearly be harmless on this record even under the federal standard of beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 25-26.) As noted above, the statements were brief, did not give any personal opinion, and were not emphasized during trial or in closing argument. Instead the court instructed the jury before opening statements that the comments of counsel were not evidence, instructed the jury again when Price's counsel objected during the opening statements that those remarks were not evidence, and yet again instructed the jury regarding counsel's statements not being evidence shortly before deliberations. We presume the jurors followed these instructions which mitigate any conceivable prejudice from the prosecutor's comments during opening statements. (See People v. Valdez (2004) 32 Cal.4th 73, 134.)
Further, in light of the extensive cross-examination of Banks set out in the facts, Banks's consistent statements throughout the various interviews in his case and Price's case that Price was the co-participant with the gun during the Mr. D's incident, Velasquez's identification of Price as the man who ran out of Mr. D's toward the car that Banks was identified as driving away from Mr. D's shortly after the shooting, and Velasquez's description of Price coinciding with the still photos made from the videotape of the robber who shot Kassab inside Mr. D's, it is difficult to see how the prosecutor's few comments during opening statements regarding what evidence would be produced at trial could have any impact on the outcome of the jurors' evaluation of Banks's credibility. No prejudicial error is shown.
4. Sentencing: The Upper Term Sentences
After sentencing on the second degree murder conviction, the trial court stated it was staying sentence on the shooting at an occupied vehicle conviction and its attendant enhancement because it found those crimes merge with the murder term. The court specifically stated it was imposing seven years on the shooting conviction and an additional five years for its enhancement, which would be stayed under section 654.
The court then imposed sentence on Price's attempted robbery and firearm assault convictions and their attendant enhancements. In doing so, the trial judge stated:
At the second trial, the jury specifically found Price guilty of attempted robbery in count 1 (referred to the parties as count 3 of the originally filed indictment) and found true firearm allegations under section 12022.53, subdivisions (c) and (d) for that count. The jury found Price guilty of assault with a firearm in count 2 (originally count 4) and found true a firearm allegation under section 12022.5, subdivision (a)(1) for that count.
"With respect to the attempted robbery, I am going to give [Price] the upper term on count 1. The reason why I have chosen the upper term is for the following reasons: I believe that notwithstanding the arguments that [Price] was a pawn, if you will, or [led] by Mr. Banks into committing this robbery, I think that actually [Price] was the leader in deciding to go commit this robbery. He obtained the gun and the mask and bandanna. The victim was in a very vulnerable position. I don't find any circumstances in mitigation. There was no money taken and no reason to actually shoot Mr. Kassab whatsoever, and so that's why I . . . think the upper term is appropriate. [¶] I know that [Price] had been on juvenile probation. Notwithstanding the fact that he successfully completed it, he had been given a chance in the juvenile system to rehabilitate himself, and instead he decided to commit this crime. And so that's why another reason why I feel it is important to impose the upper term on count 1."
The judge then stayed the 20-year enhancement for the section 12022.53, subdivision (c) allegation in light of imposing the 25-year-to-life enhancement for the section 12022.53, subdivision (d) allegation (§ 12022.53, subd. (f)), consecutive to the three years imposed for a total of 28 years to life. It then imposed and stayed the upper term of four years and 10 years respectively for the count 2 firearm assault and section 12022.5, subdivision (a)(1) enhancement allegation, so that the total prison term with respect to the matter would be "three years plus 25 years to life."
Due to improper punctuation, the transcript of the court's sentence appears to incorrectly reflect that the total of 28 years to life was imposed with regard to count 2. To prevent an unauthorized sentence, we have read the court's oral pronouncement in context, overlooking the clerical punctuation errors.
Although the court did not state reasons for imposing the upper term for the firearm assault or its enhancement, or for the upper term imposed on the shooting at an occupied vehicle conviction, we presume it would have used the same reasons that it stated for the upper term it imposed for the attempted robbery conviction.
Price objects on appeal to the factors relied upon by the trial court to impose an upper term on any of his convictions and enhancements that provided for a choice of terms, arguing they were based on facts not found true beyond a reasonable doubt by the jury under the holding of Cunningham, supra, 549 U.S. 270. The People disagree the upper terms were improperly imposed, arguing the court properly relied in part on Price's recidivism, a recognized exception to Cunningham, and that any Cunningham error was harmless on this record. (See Washington v. Recuenco (2006) 548 U.S. 212, 216 (Recuenco); People v. Sandoval (2007) 41 Cal.4th 825, 839 (Sandoval).) We reverse the sentences for the attempted robbery and assault with a firearm convictions as well as the section 12022.5, subdivision (a)(1) firearm enhancement for the assault conviction and remand for resentencing.
The United States Supreme Court in Cunningham determined that that portion of the California Determinate Sentencing Law (DSL) permitting a court to impose an upper term sentence based on aggravating facts not found true by a jury or beyond a reasonable doubt is unconstitutional and violates the holdings in Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), Blakely v. Washington (2004) 542 U.S. 296 (Blakely) and United States v. Booker (2005) 543 U.S. 220 (Booker). In so holding, the court in Cunningham overruled People v. Black (2005) 35 Cal.4th 1238 (Black I), stating: "Contrary to the Black [I] court's holding, our decisions from Apprendi to Booker point to the middle term specified in California's statutes, not the upper term, as the relevant statutory maximum. Because the DSL authorizes the judge, not the jury, to find the facts permitting an upper term sentence, the system cannot withstand measurement against our Sixth Amendment precedent." (Cunningham, supra, 549 U.S. at p. 293, fn. omitted.) The high court again reaffirmed Apprendi's bright-line rule, that had been reiterated in both Blakely and Booker, that "[e]xcept for a prior conviction, 'any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.' [Citation.]" (Cunningham, supra, 549 U.S. at pp. 288-289.)
During the pendency of this appeal, our Supreme Court decided People v. Black (2007) 41 Cal.4th 799 (Black II), in which it reconsidered its holding in Black I in light of the Cunningham decision, concluding that the existence of "a single aggravating circumstance" renders a defendant eligible for the upper term, thus making the upper term the "statutory maximum" in cases where at least one aggravating fact has been shown in a manner consistent with the requirements of the Sixth Amendment. (Black II, supra, 41 Cal.4th at p. 813.) The court specifically stated that "as long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional fact finding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant's right to jury trial." (Black II, supra, 41 Cal.4th at p. 812.)
In a companion case decided the same day, our Supreme Court in Sandoval, supra, 41 Cal.4th 825, found, among other things, that because there were no factors in aggravation cited by the trial court in that case which satisfied the Sixth Amendment right to jury trial established under Blakely, supra, 542 U.S. 296 to make the defendant eligible for the upper term as there had been in Black II, the trial court committed error which must then be analyzed under the Chapman "harmless beyond a reasonable doubt standard." (Sandoval, supra, 41 Cal.4th at pp. 837-838.) When the court did so in that case, it found the error prejudicial and set out the procedure for resentencing consistent with the Legislature's March 30, 2007 amendment of section 1170. (Sandoval, supra, 41 Cal.4th at pp. 843-852.)
Here, the People essentially concede that two of the trial court's reasons for imposing the upper terms in this case, the victim's vulnerability and Price's leadership in the attempted robbery, were not admitted by Price or found true beyond a reasonable doubt by the jury in violation of Cunningham. Nonetheless, they argue that the court's reliance on Price's juvenile probation and his failure to make use of the opportunity to reform makes any additional reliance on those factors irrelevant because only one good qualifying circumstance "renders a defendant eligible for the upper term sentence." (Black II, supra, 41 Cal.4th at p. 812.)
Although the People's position that the trial court's comments about Price's juvenile probation properly relies upon Price's criminal history which falls under the "Almendarez-Torres recidivism exception" to Blakely/Cunningham claims (see People v. Velasquez (2007) 152 Cal.App.4th 1503, 1514) at first blush appears dispositive, on closer inspection, it is not as to all counts. On review, we not only examine the trial court's reasons for its sentencing choices, we also examine the evidence supporting its reasons. (Black II, supra, 41 Cal.4th at p. 818, fn. 7.) Doing so in this case, we discover that although the court referred to the facts that Price had been on juvenile probation and had been given the chance to rehabilitate before deciding to commit these crimes, the probation report shows that he only had one juvenile prior adjudicated on July 10, 2001, which is after the crimes committed at Mr. D's in April 2001. Because Price was thus not on probation at the time he committed the attempted robbery or firearm assault crimes, the court's stated reasoning with regard to Price's criminal history to impose upper terms for those convictions as well as the section 12022.5, subdivision (a)(1) enhancement to the assault is unsupported by the evidence. The same, however, does not apply to the upper term imposed for the shooting at an occupied vehicle conviction as such crime occurred September 23, 2001, after Price was placed on juvenile probation.
Almendarez-Torres v. United States (1998) 523 U.S. 224 (Almendarez-Torres).
In People v. Towne (2008) 44 Cal.4th 63, 76-81 (Towne), our Supreme Court recently examined various recidivism-related factors that permitted trial courts to impose terms above the statutory maximum if the defendant had served a prior prison term, if the defendant had been on probation or parole when the crime was committed, or if the defendant's prior performance on probation or parole had been unsatisfactory. Although the court in Towne held that the Sixth Amendment right to a jury trial does not apply to the factors that the defendant has served a prior prison term, that the defendant was on probation or parole when the crime was committed, or that the defendant committed new crimes resulting in conviction while on probation or parole, it found the right to a jury trial does apply if "poor performance on probation or parole can be established only by facts other than the defendant's prior convictions." (Id. at pp. 82-83.)
Although Price was not on probation at the time of the Mr. D's crimes, he was on probation when the shooting at the occupied vehicle occurred. Therefore, the court could use the fact that he had poor performance on probation as a reason for aggravating his term for the shooting at an occupied vehicle conviction without having a jury trial on that fact, but not for the robbery and assault convictions or firearm enhancement. (Towne, supra, 44 Cal.4th at pp. 82-83.) Consequently, the trial court's reliance on Price's criminal history in this case was only a valid circumstance that rendered him eligible for the upper term in accordance with the requirements of Apprendi, supra, 530 U.S. 466 and its progeny with regard to the shooting at a vehicle conviction. (Black II, supra, 41 Cal.4th at p. 812.) That being so, we conclude the trial court improperly based its sentencing decision to impose the upper terms on the attempted robbery and firearm assault convictions and the section 12022.5, subdivision (a)(1) firearm enhancement solely on facts not found by the jury, which is error under Cunningham, Blakely, and Apprendi. (See accord, People v. Cardenas (2007) 155 Cal.App.4th 1468, 1478-1483.)
The question thus becomes whether the error was prejudicial. We may find the error in imposing an upper term harmless if we can say beyond a reasonable doubt that had the jurors been presented with the factors in aggravation that the court relied upon, they would have found at least one of them true beyond a reasonable doubt, thus authorizing the imposition of an upper term regardless of the validity of any of the other factors the court had relied upon to aggravate the term. (See Recuenco, supra, 548 U.S. at pp. 216-222; Sandoval, supra, 41 Cal.4th at pp. 838-839.) In other words, our prejudice inquiry ends if we determine that the jury would have found at least one aggravating circumstance true thereby exposing Price to the upper term. (Ibid.)
As already noted, the trial court here improperly based its sentencing discretion to impose an upper term on the attempted robbery and firearm assault convictions and the firearm enhancement to the assault strictly on facts not found by the jury; i.e., that the victim was particularly vulnerable, Price held a leadership role, and Price's performance after successfully completing probation was such that he did not take the opportunity to rehabilitate himself. Although a jury could have found that Kassab was "particularly vulnerable" because he was caught by surprise working in the store alone when Price entered his store, jumped over the counter and held the gun at his head, and could have found that Price was a leader in the attempted robbery because he was the one with the gun and covered his face, we cannot say beyond a reasonable doubt that it would have done so.
With regard to the first factor, "particularly vulnerable" has been defined as vulnerability that is of "a special or unusual degree, to an extent greater than in other cases." (People v. Smith (1979) 94 Cal.App.3d 433, 436.) In determining vulnerability, both the personal characteristics of the victim and the setting of the crime generally may be considered. (People v. Bennett (1981) 128 Cal.App.3d 354, 357-358.) However, the use of a weapon or a fact used to aggravate a crime may not be relied upon to show vulnerability when such use or fact is the basis for an enhancement or higher punishment in a case. (Id. at p. 358, fn. 1; see also People v. Piceno (1987) 195 Cal.App.3d 1353, 1357.)
At sentencing, the trial court did not express what it found made Kassab particularly vulnerable for the attempted robbery and firearm assault in this case. Because the facts that Price used a firearm during the crimes or that Kassab was severely injured cannot be used to show vulnerability due to gun enhancements and increased punishment for the various firearm and personal injury findings, we cannot conclude the jury would have found beyond a reasonable doubt that Kassab was any more vulnerable than any other business robbery victim thereby making the crimes " 'distinctively worse than the ordinary.' [Citation.]" (Black II, supra, 41 Cal.4th at p. 817.)
Nor can we say on this record, where Banks's credibility was vigorously challenged, that the jury would have concluded beyond a reasonable doubt that Price, who was only 16 years old at the time of crimes, was in a leadership position over Banks, who was older and an admitted longtime LP gang member.
As to Price's criminal history, as discussed above, the evidence in the probation report does not support the trial court's reliance on such factor. We simply cannot say on this record that a jury, given the appropriate factual background concerning Price's one juvenile prior adjudication that occurred after the commission of the attempted robbery and assault crimes, would have found beyond a reasonable doubt that Price's criminal history was a proper aggravating factor.
Our Supreme Court has granted review in several cases holding that juvenile adjudications may be used to impose upper term sentences. (People v. Grayson (2007) 155 Cal.App.4th 1059, rev. granted Dec. 19, 2007, S157952; People v. Tu (2007) 154 Cal.App.4th 735, rev. granted Dec. 12, 2007, S156995.)
Accordingly, Price's sentences on his convictions for attempted robbery and assault with a firearm and the attendant section 12022.5, subdivision (a)(1) enhancement must be vacated as violative of Cunningham, Blakely and Apprendi, and the matter remanded for resentencing as set forth in Sandoval, supra, 41 Cal.4th at pp. 846-858.
DISPOSITION
The sentences for the attempted robbery and assault with a firearm convictions and the attendant section 12022.5, subdivision (a)(1) firearm enhancement are reversed and the case remanded to the superior court to conduct a new sentencing hearing as to those counts consistent with the views expressed in this opinion. In all other respects, the judgment is affirmed.
WE CONCUR: BENKE, Acting P. J., IRION, J.