P. v. Casey

Filed 12/10/08 P. v. Casey CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from a judgment of the Superior Court of Los Angeles County. James R. Dabney, Judge. Judgment affirmed as modified.

Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec and Alene M. Games, Deputy Attorneys General, for Plaintiff and Respondent.

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A jury convicted Jurray Willie Casey (appellant) of first degree murder (Pen. Code, 187, subd. (a))[1](count 1) and shooting at an occupied vehicle ( 246) (count 2). As to each count, the jury found the gang allegation to be not true. The jury found with respect to both counts that a principal personally used and discharged a firearm and caused death within the meaning of section 12022.53, subdivisions (b), (c), (d), and (e)(1).

The trial court sentenced appellant to state prison for a term of 50 years to life. The sentence consisted of 25 years to life in count 1 and a consecutive 25 years to life for the firearm enhancement under section 12022.53, subdivisions (d) and (e)(1). In count 2, the court imposed the midterm of five years and a consecutive 25 years to life for the firearm enhancement. The sentence in count 2 is to run concurrently to that in count 1.

Appellant appeals on the grounds that: (1) he was denied his rights to compulsory process and due process of law when the prosecutor and the court declined to grant immunity to defense witnesses; (2) the trial courts exclusion of the statements of certain witnesses deprived appellant of his due process and other constitutional rights to present a defense; (3) the trial court committed prejudicial error in improperly instructing the jury on the natural and probable consequences doctrine; (4) the trial court erred in overruling objections to portions of the gang experts testimony because such testimony was speculative, lacked proper foundation, and intruded upon the jurys determination of the ultimate issues pertinent to guilt; (5) the experts opinions that everyone in appellants car knew and intended to commit a violent crime in driving outside their gangs territory usurped the jurys factfinding role, thereby depriving appellant of his rights to due process and a jury trial; (6) the natural and probable consequences doctrine violates the rights to due process and trial by jury by improperly permitting conviction based on ordinary negligence; (7) CALCRIM No. 220s definition of reasonable doubt violated appellants federal due process right to have his guilt determined beyond a reasonable doubt and requires that the judgment be reversed; (8) CALCRIM No. 226 invites jurors to consider matters outside the record in violation of the defendants constitutional rights to due process, a fair trial and confrontation; (9) the district attorney engaged in repeated and varied forms of prosecutorial misconduct; (10) improper juror contact abrogated appellants presumption of innocence and denied him his constitutional right to due process and a fair trial; (11) cumulative error denied appellant his due process right to a fair trial; (12) the trial court erred in failing to stay the sentence in count 2 pursuant to section 654; (13) imposition of separate punishment on the murder and shooting at an occupied vehicle counts violated the double jeopardy clauses of the United States and California Constitutions; and (14) the trial court erred in imposing personal firearm discharge enhancements where the prosecution only pleaded and sought jury findings on principal use and discharge of a firearm, denying appellant due process of law and his Sixth Amendment right to a jury determination on all issues.

FACTS

Prosecution Evidence

On the night of January 7, 2006, Jamarea Wilson (Wilson), Leon Collins (Collins), Tariq Anderson (Anderson), Rammon Lewis (Lewis) and Rashad Ali (Ali) went to the Debbie Allen Dance Studio in Culver City. They were all enthusiasts of crumping, a form of African tribal dancing, and there was a crump dance competition at the studio that night. Crumpers have no interest in street gangs. During the event, there was an altercation and shots were fired. Everyone was told to leave, but Wilson and his friends kept dancing in the parking lot until police told them to leave.

Wilson was driving his customized Dodge Durango that was painted blue and red. Wilsons dance name from crumping was Superman, and he had a Superman symbol painted on the hood of his Durango. The truck had 22-inch rims and red dust covers. On the rear door was painted the phrase I cant be stopped. Collins, Anderson, and Ali sat in the backseat of the Durango when they left the dance studio. As they drove along, Anderson noticed appellant driving toward them from the opposite direction in a Thunderbird. Anderson saw appellant giving the Durango a hard stare. He became concerned when he saw appellant make a U-turn and drive behind them until it stopped two lanes over from the Durango while both cars waited at a red light. Anderson told Wilson to take off when the light turned green. Wilson was in the No. 1 lane, another car was in the No. 2 lane, and the Thunderbird was in the gutter lane.

When the light changed, Wilson accelerated. Appellant also accelerated, passed the car in the middle lane, and pulled in front of it, drawing alongside the Durango. No words or gestures were exchanged between the two cars. Someone in the Thunderbird put his arm out the drivers window and fired several shots. Wilson braked and made an illegal U-turn. He drove in the opposite direction until he saw a police officer. The Thunderbird had kept on moving. When Wilson asked his passengers if everyone was all right, Ali realized he had been shot.

At trial, Collins identified appellant as the driver of the Thunderbird and stated that he saw appellant stick his arm like halfway out the window with a gun in his hand. His arm was built like a football player. At the field show up, he selected appellant as the driver and shooter. He later told the district attorney that the arm he saw was light-skinned. Anderson also identified appellant at the field showup.

OfficerRandy Vickrey of the Culver City Police Department saw the Durango run a red light and stop in front of his patrol car at approximately 12:40 a.m. on January 8, 2006. Wilson said that his friend had been shot, and Officer Vickrey called an ambulance. Ali later died during surgery. He had suffered a gunshot wound to the abdomen.

Officer Andrew Bass heard a radio broadcast that a Thunderbird had been involved in a shooting and made a traffic stop of appellants car approximately one mile from the shooting scene. The car was also occupied by Donovan Halcom (Halcom), Jabbarri Green (Green), and Lamar Jacobs (Jacobs). Officer Bass handcuffed the men and the car was searched. Officer Bass found a mitten containing six .22-caliber bullets behind the drivers seat. He discovered a nine-millimeter handgun and a .22-caliber handgun hidden in a compartment behind a speaker cover in the backseat.

Detective Tina Jones of the Los Angeles Sheriffs Department worked in the gang suppression division. She testified at appellants trial that on March 17, 2005, she searched appellants residence. She found a shoebox under his bed that bore gang graffiti and the words Ray Ray and B.I.G. 4 Life. Detective Jones stated that the graffiti identified appellant as a member of the Baby Insane Crips for life. The box contained clippings about appellants high school football exploits. Appellant had the word Ray tattooed on each arm. Detective Jones was investigating an incident at a Skate Depot involving appellant that occurred in February 2005. Appellant told Detective Jones he was standing outside the Skate Depot with two friends from the Baby Insane Crips when members of the Rolling 20s approached them and yelled an insult. The situation escalated into a fight.

Officer Chris Zamora of the Long Beach Police Department testified as a gang expert. The Long Beach Insane Crips gang had approximately 1,000 members and committed crimes ranging from murder to narcotics sales. The Baby Insane Crips gang was a young clique with a lot to prove, and it committed acts of violence to enhance its reputation. They were rivals of any Blood gang and of the Rolling 20s Crips. Officer Zamora was of the opinion that appellant was a member of the Baby Insane Crips because of his tattoos, his gang friends, and the shoebox found under his bed.

Defense Evidence

Ranard Gaston, appellants cousin, testified that he was a former member of Baby Insane Crips and that his moniker was Little Bay Lon. After serving a prison sentence for robbery he turned his life around. He stated that the writing on the shoebox was his. He and appellant would make model cars together when they were younger and keep them in the box. Gaston wrote the graffiti on the box and tried to convince appellant to join the gang, but appellant was interested only in sports. Appellants nickname, Ray Ray, was given to him by his family. Appellants brother was called Tut Tut.

Collette Burns, appellants mother, also testified that Ray Ray was appellants family nickname and that the shoebox was used for storing model cars. She knew nothing about the graffiti. She stated that appellant was not a gang member and that he associated with Gaston because they were cousins. Appellant was a popular football star at Long Beach Polytechnic High School with a promising future.

The Thunderbird appellant drove on the night of the shooting was owned by his cousin, Jameelah Ginn. She bought the car when her other car needed repairs. She did not buy the car for appellant. Ginn permitted her family members to drive the Thunderbird. As for appellant, she usually drove him wherever he needed to go.

The head coach at Long Beach Polytechnic, Raul Lara, was also a probation officer. Appellant was one of the best players on his team and Lara had no reason to believe appellant was a gang member. Appellant had come to speak to him after the incident at the Skate Depot.

Gordon Golding, a private investigator, examined the Durango and the Thunderbird for the defense. He constructed dowels to use in determining the trajectory of the bullets that hit the Durango. He also conducted an experiment in which a man who was five feet ten inches in height and who weighed 180 pounds sat in the rear seat of the Thunderbird behind the drivers seat. The man was able to put his arm out the window from his rear seat. Golding stated that someone sitting behind appellant could have been the shooter. Golding showed photographs of the dowels and the protruding arm.

Rebuttal Evidence

Officer Emery Eccles of the Culver City Police Department interviewed appellant after the shooting. Appellant told him that he drove his cousins Thunderbird back and forth to school five days a week.

Appellants rear passengers, Green and Jacobs, did not testify, but the prosecutor had appellant and the two men show their forearms to the jury.

DISCUSSION

I. Denial of Immunity

A. Appellants Argument

Appellant contends that the circumstances warranting the granting of judicial immunity to defense witnesses Green and Jacobs were present in this case. The trial courts refusal to grant immunity deprived appellant of the right to compulsory process and due process of law. Appellant also argues that the prosecutor used his discretion to refuse immunity under circumstances that distorted the factfinding process. Because the denial of immunity for Green and Jacobs prevented the jury from hearing testimony that contradicted the prosecutions theory of the case and from hearing a factual basis for a third-party-culpability defense, the error was prejudicial and reversal is required.

B. Proceedings Below

On April 12, 2007, defense counsel filed a motion requesting the court to extend judicial use immunity to necessary defense witnesses, or in the alternative, to admit the pretrial statements of Green and Jacobs. In the motion, defense counsel stated that Green and Jacobs independently gave statements identifying the right front passenger, Halcom, as the shooter.

At the hearing on the motion, the prosecutor confirmed that he was not extending immunity to either Green or Jacobs, and he objected to the court extending immunity. After hearing defense argument, the trial court stated that no case has recognized the conferring of judicial immunity in California. Even in other jurisdictions where it has been recognized, it is used in very limited circumstances. The court pointed out that the information from the proposed witnesses was not exculpatoryrather, it presented only a conflict in the evidence. The court also believed there was a strong governmental interest in not granting immunity since the individuals might themselves be guilty. The court did not believe the prosecutor was deliberately subverting the factfinding process. The court also denied the second part of the defense motion requesting that Greens and Jacobs prior statements be admitted regardless of their hearsay nature.

C. Relevant Authority

The California Supreme Court has characterized as doubtful the proposition that the trial court [possesses] inherent authority to grant immunity. [Citations.] (People v. Stewart (2004) 33 Cal.4th 425, 468; see also People v. Lucas (1995) 12 Cal.4th 415, 460 (Lucas).) The court has also stated that it is possible to hypothesize cases where a judicially conferred use immunity might possibly be necessary to vindicate a criminal defendants rights to compulsory process and a fair trial. (People v. Hunter (1989) 49 Cal.3d 957, 974 (Hunter); see also People v. Samuels (2005) 36 Cal.4th 96, 127.)

D. Immunity Properly Withheld

1. Court-Ordered Immunity

As stated previously, the California Supreme Court has noted that the great majority of cases reject the notion that a trial court has the power to confer immunity on a witness called by the defense. (In re Williams (1994) 7 Cal.4th 572, 610 (Williams).) The case of Government of Virgin Islands v. Smith (3d Cir. 1980) 615 F.2d 964 (Smith), cited by appellant, is the case from which the court in Hunter, followed by subsequent courts, drew the elements of the analysis used in determining whether judicially conferred immunity is necessary. (Hunter, supra, 49 Cal.3d at p. 974.)

As stated in Hunter, [T]he Smith court . . . recognized that the opportunities for judicial use of this immunity power must be clearly limited; . . . the proffered testimony must be clearly exculpatory; the testimony must be essential; and there must be no strong governmental interests which countervail against a grant of immunity . . . .  [] [T]he defendant must make a convincing showing sufficient to satisfy the court that the testimony which will be forthcoming is both clearly exculpatory and essential to the defendants case. Immunity will be denied if the proffered testimony is found to be ambiguous, not clearly exculpatory, cumulative or it is found to relate only to the credibility of the governments witnesses. (Hunter, supra, 49 Cal.3d at p. 974, quoting Smith, supra, 615 F.2d at p. 972.)

Assuming, as the courts did in Lucas, Hunter, and Williams, that judicial authority to grant immunity exists, we conclude, as did the trial court, that the circumstances in this case did not meet the stringent requirements described in Hunter and Smith that would allow for the grant of such immunity. As the court stated in Hunter, appellants offer of proof fell well short of the standards set forth in the one case which has clearly recognized such a right, Smith. (Hunter, supra, 49 Cal.3d at p. 974.) First, the testimony proffered in the instant case by defense counsel was not clearly exculpatory. As the trial court observed, appellant was still culpable as an aider and abettor regardless of whether Green and Jacobs testified that the front passenger was the shooter. The trial court believed that the proffered testimony was exculpatory only on the firearm-use allegation, although this belief is not well founded, since appellant also would share aider and abettor liability for the firearm use.

As for the testimony being essential, the trial court agreed that it would be helpful, but stated it would merely be conflicting testimony on identification rather than the exculpatory testimony it was purported to be. In addition, as the trial court observed, the defense had other means to attack the Peoples case as it related to the identification of the shooter. The defense did bring in expert testimony to show the bullets trajectories and to demonstrate that the passenger sitting behind the driver was the shooter, which was the essence of appellants defense.

Finally, the court stated that there was a strong governmental interest in not granting immunity in a case where the proposed witness may themselves have been involved in the homicide. (See, e.g., People v. Stewart, supra, 33 Cal.4th at pp. 469-470 [proposed witnesss statements suggested he himself might be guilty, which would provide a strong governmental interest in not granting immunity; witnesss statements were conflicting and may have been perjurious; cross-examination would be burdensomely limited].) In this case, although Green and Jacobs were not charged at the time of trial, they were nevertheless subject to being aiders and abettors or accessories. Although appellant urges that the prosecutor could have designed his cross-examination so as to preserve his ability to charge the men, there was no way to predict what information might be elicited at trial. There was every possibility of tying the prosecutions hands with respect to any future proceedings. The People would have been forced to prove that any evidence used was not obtained or even derived from the testimony at appellants trial. (See People v. Stewart, supra, at p. 471.)

We conclude that the trial courts conclusions are adequately supported by the record. The trial court did not err in denying appellants motion for court-ordered immunity.

2. Prosecutorial Immunity

[A]lthough the prosecution has a statutory right, incident to its charging authority, to grant immunity and thereby compel testimony [citation], California cases have uniformly rejected claims that a criminal defendant has the same power to compel testimony by forcing the prosecution to grant immunity. (Williams, supra, 7 Cal.4th at p. 609; see also Lucas, supra, 12 Cal.4th at p. 459.)

On this issue, the trial court stated, Moreover, I do not see, finally, just for the record, that this is a situation where the prosecution is deliberately trying to subvert the factfinding process. This isnt a situation where theyre granting immunity to one witness and not another when they have equal basis to believe or no basis to believe that one is telling the truth and not the other. And theyre relying on thethe testimony of witnesses that were in the victims car, who are not connected to the defendant, while these witnesses are. And I think under those circumstances, it would be impossible for me to conclude, based on these facts, that theyre doing this deliberately to subvert the factfinding process.

The state and federal Constitutions guarantee the defendant a meaningful opportunity to present a defense. (Lucas, supra, 12 Cal.4th at p. 457.) A defendants constitutional rights to compel the attendance of witnesses, as guaranteed by the Sixth Amendment, and to due process, as guaranteed by the Fourteenth Amendment, are violated when the state interferes with the defendants right to present witnesses. (Cf. Lucas, supra, at p. 455 [alleged prosecutorial misconduct prevented a witness from testifying].) While prosecutorial interference with the defendants right to present witnesses is misconduct, the prosecutors interfering conduct must be entirely unnecessary to the proper performance of the prosecutors duties, and must have served to transform a defense witness willing to testify into one unwilling to testify. (Lucas, supra, at p. 457.) The defendant also must demonstrate that the prosecutors interfering conduct was a substantial cause in depriving defendant of the testimony and that the testimony was material to the defense. (Ibid.)

We agree with the trial court. The record shows that the prosecutor did not intimidate Green and Jacobs or even discourage them from testifying. The record clearly shows that the two witnesses invoked the Fifth Amendment after conferring with their own court-appointed attorneys. Thus there is no causal link between the prosecutors acts (which did not constitute misconduct) and appellants inability to present witnesses on his behalf. Therefore, there was no violation of appellants right to compulsory process, whether or not the proffered testimony was material. (In re Martin (1987) 44 Cal.3d 1, 31-32.)

The prosecutor did nothing to transform a willing defense witness into an unwilling one as occurred in United States v. Lord (9th Cir. 1983) 711 F.2d 887, 891 (Lord), cited by appellant. In that case the prosecutor allegedly told the defense witness before trial that whether he would be prosecuted depended on his testimony. (Id. at p. 891.) The case was remanded for an evidentiary hearing. (Ibid.) Nor did the prosecutor grant immunity to favorable witnesses while denying the same to unfavorable witnesses, as occurred in U.S. v. Westerdahl (9th Cir. 1991) 945 F.2d 1083, 1086, also cited by appellant. In that case, the prosecution relied on circumstantial evidence given by two witnesses who were granted immunity by the government and another who testified as part of a plea bargain in which numerous pending charges were dismissed. (Id. at p. 1087.) In that case as well, the court held that the prosecution may have disrupted the factfinding process and ordered an evidentiary hearing. (Ibid.)

In this case, appellant has had his evidentiary hearing. As stated in Lord, the key issue in the analysis of defense use immunity is whether the defendant was denied a fair trial. (Lord, supra, 711 F.2d at p. 892.) Appellant had an evidentiary hearing in which the trial court reached the correct conclusion, and appellant was not denied a fair trial. We reject appellants arguments.

II. Exclusion of Prior Statements by Green and Jacobs

A. Appellants Argument

Appellant contends that, in the absence of a grant of immunity, the only way in which the defense could present the relevant and exculpatory evidence regarding the identity of the shooter was to admit Greens and Jacobss earlier statements to police. The defense motion argued that courts have the authority to recognize nonstatutory exceptions to the hearsay rule or to create them for classes of evidence for which there is a substantial need. Because this evidence was necessary and exculpatory, the trial courts exclusion deprived appellant of his constitutional right to present a defense.

B. Proceedings Below

As noted previously, defense counsels motion requesting immunity for Green and Jacobs also requested that, in the alternative, the trial court admit the out-of-court statements the men made to police, even though they would not be subject to cross-examination. The trial court stated that the portions of the Evidence Code that exclude this type of testimony were kept intact by the truth-in-evidence provision of Proposition 8 (Cal. Const., art. I, 28, subd. (d)). The court stated that even assuming that there is such an exception that would allow me to do it, I question the independent reliability of such statements, sufficiently reliable to have them come in. I dont believe an exception exists; and secondly, if it did, I dont think it would apply to these facts.

C. Relevant Authority

As a general proposition, the ordinary rules of evidence do not infringe on a defendants right to present a defense. (People v. Babbitt (1988) 45 Cal.3d 660, 682-683.) Trial courts possess the traditional and intrinsic power to exercise discretion to control the admission of evidence in the interests of orderly procedure and the avoidance of prejudice. (People v. Hall (1986) 41 Cal.3d 826, 834.) The trial courts rulings in this regard will not be overturned on appeal unless it can be shown that the trial court abused its discretion. ([People v.] Cooper[(1991)] 53 Cal.3d [771,] 816.) Nonetheless, the trial courts discretion is not without limits, particularly if it operates to hamper defense counsels ability to present evidence. (Ibid.) (People v. Frye ( 1988) 18 Cal.4th 894, 945.)

D. Statements Properly Excluded

Appellant cites Chambers v. Mississippi (1973) 410 U.S. 284 for the proposition that defendants have a constitutional right to have the prosecutions case subjected to meaningful adversarial testing. As explained in Lucas, supra, 12 Cal.4th 415, in Chambers, the trial court excluded defense evidence relating to a witnesss out-of-court confessions because Mississippi law excluded hearsay without any exception for statements against penal interest. State law also precluded cross-examination of nonadverse witnesses, so defendant was unable to cross-examine the witness regarding his prior confession when the witness denied complicity on the stand. The high court explained that evidence of the out-of-court confessions was critical to the defense but was excluded despite overwhelming indicia of reliability. [Citation.] It declared that the exclusion of this evidence, along with limitations on the defendants ability to cross-examine the witness, were a denial of due process in that they deprived defendant of the right to present a defense. [Citations.] (Lucas, supra, at p. 464.)

Thus we see that, for evidence to be admissible in contravention of the hearsay rule and its established exceptions, such evidence must bear persuasive assurances of trustworthiness. (Lucas, supra, 12 Cal.4th at p. 464.) The United States Supreme Court has stated, in discussing the federal residual hearsay rule, that statements admitted under a firmly rooted hearsay exception are so trustworthy that adversarial testing would add little to their reliability. [Citations.] (Idaho v. Wright (1990) 497 U.S. 805, 820-821.) The court went on to say that the particularized guarantees of trustworthiness necessary for admission of evidence in contravention of the hearsay rule must be as great. (Id. at p. 821.)

In the instant case, the evidence proffered by appellant lacked persuasive assurances of trustworthiness (Lucas, supra, 12 Cal.4th at p. 464) necessary for its admission, and there is no constitutional right to admit unreliable hearsay (People v. Ayala (2000) 23 Cal.4th 225, 269 (Ayala)). Indeed, the Chambers decision has specifically been held not to apply to a purported eyewitnesss hearsay statements to police. (People v. Kegler (1987) 197 Cal.App.3d 72, 82-83.) Not only was the declarant unavailable to explain those statements, but there was no indication that the statements were reliable, as they lacked the conventional indicia of reliability: they were not made under oath or other circumstances that impress the declarant with the solemnity of the statements; the declarants word is not subject to cross-examination; and she is not available in order that her demeanor and credibility may be assessed by the jury. (People v. Kegler, supra, at p. 83.)

In the instant case there was evidence to suggest the statements were unreliable. Both Green and Jacobs were in the backseat of the Thunderbird where the weapons were stashed. They were seen making furtive movements after the car was stopped by police. Appellants defense was that Jacobs did the shooting, and he put on an expert witness to prove it. Jacobs had a clear motive to name someone elsequite the opposite of a statement against his penal interest. The statements by Jacobs and Green were plainly unreliable hearsay, and their exclusion did not violate the due process clause.

III. Aiding and Abetting/Natural and Probable Consequences Instruction

A. Appellants Argument

Appellant contends that the trial court erred when it read a modified version[2]of CALCRIM No. 402 on the natural and probable consequences doctrine in which it named two target offensesone of which was the offense of permitting another to shoot from a vehicle ( 12034, subd. (b)). Appellant argues that only the driver of a vehicle, i.e., appellant himself, could have committed this crime. However, under a natural and probable consequences theory, the target crime must be an offense that a defendant commits while acting as an accomplice or an aider and abettor. It cannot be a crime that the defendant himself commits. Therefore, a violation of section 12034 could not have been a target offense aided and abetted by appellant. Appellant asserts that this error requires reversal because it resulted in the jury being presented with an erroneous theory of culpability for murder under the natural and probable consequences doctrine, and this court cannot determine from the record on which theory the verdict rested.

B. Relevant Authority

Section 12034, subdivision (b) provides: Any driver or owner of any vehicle, whether or not the owner of the vehicle is occupying the vehicle, who knowingly permits any other person to discharge any firearm from the vehicle is punishable by imprisonment in the county jail for not more than one year or in state prison for 16 months or two or three years.

When the evidence triggers the application of the natural and probable consequences doctrine to an aider and abettor, 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 defendants confederate committed an offense otherthan the target crime; and (5) the offense committed by the confederate was a natural and probable consequence of the target crime that the defendant aided and abetted. (People v. Prettyman (1996) 14 Cal.4th 248, 262, fn. omitted; see also People v. Gonzales (2001) 87 Cal.App.4th 1, 8.)

[W]hen the prosecution relies on the natural and probable consequences doctrine to hold a defendant liable as an aider and abettor, the trial court must, onits own initiative, identify and describe for the jury any target offense allegedly aided and abetted . . . . (People v. Prettyman, supra, 14 Cal.4th at p. 268.) A particular criminal act is a natural and probable consequence of another criminal act if, under all of the circumstances presented, a reasonable person in the defendants position would have or should have known that the charged offense was a reasonably foreseeable consequence of the act aided and abetted by the defendant. (People v. Nguyen (1993) 21 Cal.App.4th 518, 531.)

When a claim is made that instructions are deficient, we must determine whether their meaning was objectionable as communicated to the jury. If the meaning of instructions as communicated to the jury was unobjectionable, the instructions cannot be deemed erroneous. [Citations.] The meaning of instructions is no longer determined under a strict test of whether a reasonable juror could have understood the charge as the defendant asserts, but rather under the more tolerant test of whether there is a reasonable likelihood that the jury misconstrued or misapplied the law in light of the instructions given, the entire record of trial, and the arguments of counsel. [Citations.] (People v. Dieguez (2001) 89 Cal.App.4th 266, 276-277.)

C. Proceedings Below

After the prosecutors closing argument and on the second day of defense argument,the court announced that it was going to instruct on the target offenses of shooting at an occupied vehicle and allowing someone to discharge from a vehicle. The trial court believed that the notion of having guns in ones car, which the prosecutor had indicated was the target offense, was attenuated as a target offense. After completing argument, defense counsel stated that he, like the prosecutor, had fashioned his argument around an underlying act of guys going out with guns, doing the shooting. Thats going to be the underlying act. The court explained that the defense argument that appellant was unaware Jacobs was going to shoot would apply to both target crimes the court planned to include. Ultimately both counsel submitted on the courts decision. Before reading the instructions the trial court stated it had reworded the standard instruction because it was applicable only if the People were pursuing the theory of natural and probable consequences as the sole theory of guilt.

After reading the instruction on aiding and abetting, the trial court instructed the jury as it had indicated on the natural and probable consequences theory.[3] The trial court also read instructions on the two target crimes, CALCRIM No. 965 (shooting at an occupied motor vehicle), and CALCRIM No. 969 (permitting someone to shoot from a vehicle).

D. Any Error Harmless

When a jury is instructed on multiple theories, one of which is factually inadequate, reversal is not required whenever a valid ground for the verdict remains, absent an affirmative indication in the record that the verdict actually did rest on the inadequate ground. (People v. Guiton (1993) 4 Cal.4th 1116, 1128-1129.) Jurors need not be told that they have to unanimously agree on which target offense the defendant aided and abetted. (People v. Lucas (1997) 55 Cal.App.4th 721, 729.) And, when there is a general verdict in a case involving more than one factual theory, a reviewing court will presume, unless the record shows otherwise, the jury acted properly and relied on a supported theory. [Citation.] (Id. at pp. 733-734.)

We conclude that CALCRIM No. 402 as read by the trial court logically applied to the facts of this case and did not permit the jury to find appellant guilty on an unlawful theory. At worst, including the offense of permitting someone to shoot from ones vehicle was redundant and, as a result, superfluous.

It is true that, since only the driver or owner of the vehicle can commit this crime, appellant had to be a direct perpetrator of this crime. Appellant does not dispute, however, that he could be guilty of murder by aiding and abetting the shooting at an occupied motor vehicle with the natural and probable consequence of murder. Clearly, the offense of permitting someone to shoot from his Thunderbird (at the occupied Durango) precisely describes the act of aiding and abetting the target offense of shooting at an occupied vehicle. Therefore, there was no erroneous factual theory on which the jury could have founded its verdict. The instruction cannot be said to suffer from legal or factual inadequacy as discussed in Guiton, supra, 4 Cal.4th at page 1121.

That no erroneous theory was presented is bolstered by an examination of the prosecutors closing argument. The prosecutor argued that appellant was the shooter, But you know what? The law once again says, even if hes not the shooter, hes an aider and abettor. He drove the car. He positioned the car. The prosecutor subsequently went through each element of the aiding and abetting instruction followed by an explanation of the natural and probable consequences doctrine.

The insertion of the crime described by section 12034 may have suffered from a deficiency in logic, but it did not present to the jury an erroneous theory. There were only two theories presented; that appellant was the direct perpetrator (the shooter) or that he was an aider and abettor. Any error or inartful language in the instruction was not likely to have misled the jury into misconstruing or misapplying the law of aiding and abetting under the natural and probable consequences doctrine in light of the entirety of the instructions, the evidence and the arguments of counsel. (People v. Dieguez, supra, 89 Cal.App.4th at p. 276.) The jurors could not have convicted appellant without finding that he, at a minimum, aided and abetted the shooting at an occupied vehicle under the facts of this case. There was no miscarriage of justice, since there was no reasonable possibility of a result more favorable to appellant had only the target offense of shooting at an occupied vehicle been included. (Id. at pp. 277-278.)

IV. Gang Experts Testimony

A. Appellants Argument

Appellant contends that, in answering the prosecutors hypothetical questions, the gang experts in this case testified about the knowledge, purpose, motive, and intent of the occupants of appellants car prior to the shooting. Officers Zamora and Jones effectively testified that each of the occupants of the Thunderbird knew of the presence of the weapons and went driving outside the gang territory with the intent of engaging in violent criminal conduct. Such improper testimony was disapproved of in People v. Killebrew (2002) 103 Cal.App.4th 644 (Killebrew). The two experts went beyond the proper scope of gang expert testimony, i.e., the culture and habits of criminal street gangs.

Appellant argues that, even though the jury found untrue the gang allegation, the improper opinions were prejudicial because they affected the jurys consideration of appellants role as an aider and abettor. Appellant asserts that the jury apparently relied on the aiding and abetting theory in convicting appellant. It is reasonably probable that it would have reached a different conclusion regarding appellants aider and abettor liability had the court excluded the impermissible portions of the gang experts opinions.

B. Relevant Authority

A trial court has discretion concerning the admission of evidence, including expert testimony. (See, e.g., People v. Carter (2003) 30 Cal.4th 1166, 1194; People v. Olguin (1994) 31 Cal.App.4th 1355, 1369.) An expert may offer opinion testimony if the subject is sufficiently beyond common experience so that it would assist the trier of fact. (Evid. Code, 801, subd. (a); People v. Ochoa (2001) 26 Cal.4th 398, 438; People v. Gardeley (1996) 14 Cal.4th 605, 617 (Gardeley); Killebrew, supra, 103 Cal.App.4th at p. 651.)

In order to assist the trier of fact, the culture and habits of criminal street gangs are proper subjects for an experts opinion. (Gardeley, supra, 14 Cal.4th at p. 617; People v. Valdez (1997) 58 Cal.App.4th 494, 506.) An expert may base his or her testimony on reliable material not admitted into evidence or even inadmissible material as long as it is of a type reasonably relied upon by experts in that particular field. (Gardeley, supra, at p. 618.) A properly qualified gang expert may, where appropriate, testify to a wide variety of matters, including but not limited to, whether and how a crime was committed to benefit or promote a gang; the motivation for a particular crime; a gangs culture, habits, and territory; and rivalries between gangs. (Killebrew, supra, 103 Cal.App.4th at pp. 656-657, and authorities cited therein.) Such testimony may address the ultimate issue in the case (Evid. Code, 805; Killebrew, supra, at p. 651) and may be based on hypothetical questions derived from the facts of the case (Gardeley, supra, at p. 618).

C. Proceedings Below

Officer Zamora was the first witness and gave his gang expert testimony before the facts of the case were presented to the jury. The testimony to which appellant objects was in response to the prosecutors hypothetical questions. The prosecutor asked Officer Zamora to assume that a member of the Long Beach Insane Crips gang goes outside of his Long Beach territory to Culver City in a car with three other people in it and with a Ruger nine-millimeter, a .22-caliber revolver, numerous .22-caliber bullets, nine-millimeter ammunition, gloves, and mittens. The prosecutor asked the officer to give his opinion, based on his training and experience, as to the purpose of rolling out of your territory deep with four people in the car? Defense counsel objected, and the trial court overruled the objection subject to a motion to strike should there not be any evidence to establish the facts in the hypothetical upon which the opinion was based.

Officer Zamora responded by stating that, in the gang culture, this was known as rolling deep. He would think the four people were going to commit a violent crime together for profit or to enhance their reputation. Defense counsel objected and moved to strike. At the bench, he stated that the officer was not competent to testify about the mental state of all the persons in the car. The trial court stated that the expert could give his opinion based on hypothetical facts as to whether the crime was committed at the direction of, or for the benefit of a street gang. When defense counsel repeated that Officer Zamora could not testify as to what people knew in the car, the trial court stated that Officer Zamora had not done so, and the prosecutor agreed.

The prosecutor also posed a hypothetical to Detective Jones about the concept of rolling deep. The prosecutor asked, So in your opinion, if members of Long Beach Insane go outside of their territory to Culver City in the car with multiple rounds of ammunition and multiple handguns, rolling deep, what is the purpose of that? Defense counsel objected, stating there was no foundation. The trial court allowed a response subject to a later motion to strike if the facts upon which Jones based her opinion were not produced. Defense counsel then stated that the nature of his objections was that Jones was testifying to somebody elses statement, and his objection was overruled. Jones responded to the hypothetical by stating, Okay. Theyre leaving their area, first of all. Theyre not gonna leave their area without a plan. If something happened, they have to be ready to act. They roll deep. They know that if something happened, theyre stopped by the police, or if theyre caught with the weapons in the car, theyre gonna bail, theyre gonna run. . . . So when they roll deep, the plans are all ready. And they have the weapons in the car. Theyre going to take action. Something is bound to happen, and most of the time it does.

D. Testimony Properly Admitted

Although isolated segments of the testimony that appellant finds objectionable appear similar to the disapproved testimony in Killebrew, we conclude that the testimony of Officer Zamora and Detective Jones was within the permissible area of gang expectations, a facet of gang culture. The objectionable testimony in Killebrew consisted of the experts opinion that each of the individuals in three different cars knew there was a gun in two of the cars and each individual jointly possessed the gun with every other person in all three cars for their mutual protection. (Killebrew, supra, 103 Cal.App.4th at p. 658.) The expert also testified that when one gang member in a car possesses a gun, every other gang member in the car knows of the gun and will constructively possess the gun. (Id. at p. 652.) Killebrew noted there was nothing in the evidence to support this opinion. Further, this testimony improperly addressed the subjective knowledge and intent of each individual in each vehicle. (Id. at p. 658.) Because the experts testimony was based on nothing more than the experts opinion as to how the case should be decided and was the only evidence offered to establish the knowledge element of the charged offense of conspiracy, reversal was required. (Id. at pp. 658-659.)

In this case, neither officer gave an opinion as to how the case should be decided, and their expert testimony was far from the only evidence offered to establish the elements of the crime. Officer Zamora responded to the prosecutors request to explain rolling deep, which is an aspect of gang culture. When Officer Zamora said that everybody is going to know about it, he was clearly referring to the fact that the community would know about the crime, thus referring to the status-enhancing motive for the crime. Neither Officer Zamora nor Detective Jones strayed from speaking in the general terms elicited by the hypothetical questions. As in Olguin, supra, 31 Cal.App.4th at page 1371, Officer Zamoras and Detective Joness testimony related to what gangs and gang members typically expect and not on [appellants] subjective expectation. Clearly, Killebrew does not preclude the prosecution from eliciting expert testimony that provides the jury with information from which it may infer the motive for a crime or the perpetrators intent.

As the California Supreme Court stated in People v. Gonzalez (2006) 38 Cal.4th 932, 946 (Gonzalez) we read Killebrew as merely prohibit[ing] an expert from testifying to his or her opinion of the knowledge or intent of a defendant on trial. Such did not occur in the instant case. Further, as in Gonzalez, although it is true that the officers opinions, if found credible, might, together with other evidence, lead the jury to find appellant committed the offense, this renders the evidence probative rather than inadmissible. (Id. at p. 947.) In this case, appellant and his cohorts apparently did not know Ali and the other occupants of the car, and the gang experts testimony was highly relevant and probative on the issue of motive. The law does not disfavor the admission of expert testimony that makes comprehensible and logical that which is otherwise inexplicable and incredible. (Ibid.)

In any event, these remarks were harmless in the instant case. Notably, the jury found not true the allegation that appellant committed the crimes for the benefit of a criminal street gang. And although appellant urges that the objected-to testimony adversely affected the jurys view of appellant as an aider and abettor, we disagree. In Killebrew, because the experts testimony was the only evidence the People offered on the elements of the crime the opinion did nothing more than inform the jury how [the expert] believed the case should be decided and was an improper opinion on the ultimate issue. (Killebrew, supra, 103 Cal.App.4th at p. 658.) Here, there was ample evidence to convict appellant as either the shooter or an aider and abettor. The weapons were found in a hidden compartment built into the speakers of appellants car. It is reasonable to infer that only appellant, of the four occupants of the Thunderbird, would have authorized and created this hiding place. Appellant was the driver who crossed paths with the Durango, stared at the car, and then made a U-turn to follow it. Appellant passed the car traveling between him and the Durango and drove up alongside the Durango. Appellant was identified as the shooter by one of the Durangos occupants. Even if the shooter were Jacobs, as appellant argued at trial, the jury very reasonably could infer that appellant facilitated the shooting that resulted in the murder. Appellants argument is without merit.

V. Gang Experts Testimony and Due Process

A. Appellants Argument

Appellant argues that the testimony described in the previous section also had the effect of compelling guilty verdicts, which resulted in the usurpation of the jurys role as the finder of fact. According to appellant, although the trial judge did not seek to direct the jurys verdict, the testimony of the expert witnesses effectively did so. The testimony therefore constituted a violation of appellants right to a trial by jury as guaranteed by the Sixth Amendment to the United States Constitution and article 1, sections 3 and 16 of the California Constitution, and is reversible per se.

B. Relevant Authority

Evidence Code section 805 provides that [t]estimony in the form of an opinion that is otherwise admissible is not objectionable because it embraces the ultimate issue to be decided by the trier of fact. Nevertheless, an expert opinion is inadmissible if it invades the province of the jury to decide a case. (Piscitelli v.Friedenberg (2001) 87 Cal.App.4th 953, 972.) Such evidence is wholly without value to the trier of fact. (Ibid.) The determination whether an expert witnesss opinion bears upon or decides an ultimate issue in the case is sometimes a difficult decision, and a large element of judicial discretion [is] involved. (People v. Wilson (1944) 25 Cal.2d 341, 349.) (People v.Frederick (2006) 142 Cal.App.4th 400, 412; see also People v. Valdez, supra, 58 Cal.App.4th at p. 506.)

C. No Sixth Amendment Violation

We find no merit to appellants claim that the trial courts admission of the gang expert testimony amounted to a directed verdict. A gang experts testimony may properly be admitted to prove motive and intent. (See People v. Carter, supra, 30 Cal.4th at p. 1196; People v. Funes (1994) 23 Cal.App.4th 1506, 1518.) Expert testimony has frequently been employed to prove the motivation for a particular crime, generally retaliation or intimidation and whether and how a crime was committed to benefit or promote a gang. (Killebrew, supra, 103 Cal.App.4th p. 657.) Courts have generally found the admission of similar examples of expert testimony proper. (See, e.g., Gardeley, supra, 14 Cal.4th at p. 619 [gang expert could properly testify that hypothetical attack based on the facts of the case was a classic example of gang-related activity, since gangs use such assaults to intimidate residents]; People v. Zepeda (2001) 87 Cal.App.4th 1183, 1207-1209 [expert testimony that defendant committed shooting to enhance his reputation within the gang, reestablish the gang within the community, and send a message to the community and rival gangs was properly admitted]; People v. Valdez, supra, 58 Cal.App.4th at pp. 508-509 [trial court properly allowed expert testimony that a caravan of members from seven gangs acted on the date of the charged offense for the benefit of all seven gangs].)

We have concluded that the gang expert testimony was admissible under state law, relevant to the issues in this case, and was not unduly prejudicial. Having reached this conclusion, appellants Sixth Amendment claim must fail. (See, e.g., People v. Carter, supra, 30 Cal.4th at p. 1196 [defendants claim of federal constitutional error is entirely dependent on claim of state law error and must also fail]; Ayala, supra, 23 Cal.4th at p. 253 [There was no violation of state law, and because defendants constitutional claims are predicated on his assertion that state law was violated, they too must fail].)

VI. Natural and Probable Consequences Doctrine as a Violation of Constitutional Rights

A. Appellants Argument

Appellant contends that the natural and probable consequences doctrine permits liability to be based on negligence even though the charged crime requires a different mental state. An aider and abettor need not share the perpetrators mental state or even intend that the crime be committed as long as the perpetrators commission of the crime was reasonably foreseeable. The application of the doctrine therefore implicates both state and federal due process considerations. Appellant asserts that the jury was allowed to impose criminal liability for premeditated murder without finding the essential element of malice aforethought.

B. No Due Process Violation

Although the natural and probable consequences doctrine has been subject to criticism (People v. Prettyman, supra, 14 Cal.4th at p. 248), [t]he Supreme Court has repeatedly rejected the contention that an instruction on the natural and probable consequences doctrine is erroneous because it permits an aider and abettor to be found guilty of murder without malice. (People v. Garrison (1989) 47 Cal.3d 746, 777-778 []; People v. Bunyard (1988) 45 Cal.3d 1189, 1231-1232 [].) (People v. Culuko (2000) 78 Cal.App.4th 307, 322.) The doctrine is an established rule of American jurisprudence. (People v. Prettyman, supra, at p. 260.) Appellants contention must therefore be rejected.

VII. CALCRIM No. 220 on Reasonable Doubt

A. Appellants Argument

Appellant contends that CALCRIM No. 220[4]on reasonable doubt, when read together with CALCRIM No. 222, which defines evidence as the sworn testimony of witnesses, the exhibits admitted into evidence, and anything else I told you to consider as evidence limited the jurys determination of reasonable doubt to the evidence received at trial. The jury was precluded from considering the lack of evidence corroborating the weak eyewitness testimony. Appellant also argues that CALCRIM No. 220, by requiring the jury to impartially compare the evidence, reduces the prosecutions burden of proof and violates due process by advising the jury to weigh the evidence in a manner suggestive of the preponderance of the evidence standard. Finally, appellant claims that the giving of CALCRIM No. 220 is reversible per se.

B. No Error

In determining whether jury instructions are correct, we look at the instructions as a whole. (People v. Campos (2007) 156 Cal.App.4th 1228, 1237 (Campos).) An instruction is misleading only if in the context of the entire charge, there is a reasonable likelihood that the jury misconstrued or misapplied its words. (Ibid.) As in the instant case, the defendant in