P. v. Collier

Filed 2/11/08 P. v. Collier CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County, Lance A. Ito, Judge. Affirmed and remanded for resentencing.

John Steinberg, under appoint 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, Senior Assistant Attorney General, Jaime L. Fuster and Daniel C. Chang, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION

The District Attorney of Los Angeles County filed an information charging defendant and appellant James Collier (defendant) with the first degree murder of Joseph Swift (Pen. Code,[1] 187, subd. (a); count 1); the attempted willful, deliberate, premeditated murders of Fred Bigbee ( 664, 187, subd. (a); count 2), Christine Kjellesvig ( 664, 187, subd. (a); count 3), Asa Price ( 664, 187, subd. (a); count 4), Giovanni Jones ( 664, 187, subd. (a); count 5), Stanley Barlow ( 664, 187, subd. (a); count 6),[2]Charisma Johnson ( 664, 187, subd. (a); count 7), Shada Lofton ( 664, 187, subd. (a); count 8), and Shanae Lofton ( 664, 187, subd. (a); count 9); and shooting into an inhabited dwelling ( 246; count 10).[3] As to count 1, the information alleged that defendant killed Swift while defendant was an active participant in a criminal street gang and the murder was carried out to further the activities of the criminal street gang ( 190.2, subd. (a)(22)); that the murder was perpetrated by means of shooting a firearm from a motor vehicle with the intent to inflict great bodily injury ( 190, subd. (d)); that defendant personally used a firearm ( 12022.53, subd. (b)); that he personally and intentionally discharged a firearm ( 12022.53, subd. (c)); that he personally and intentionally discharged a firearm that proximately caused great bodily injury and death ( 12022.53, subd. (d)); and that the murder was intentional and perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person or persons outside the vehicle with the intent to inflict death ( 190.2, subd. (a)(21)). As to counts 2 through 11, the information alleged that defendant personally used a firearm ( 12022.53, subd. (b) and that he personally and intentionally discharged a firearm ( 12022.53, subd. (c)). As to all counts, the information alleged that defendant committed the offenses for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to promote, further, and assist in criminal conduct by gang members ( 186.22, subd. (b)(1)(A)); that defendant had suffered a prior conviction or juvenile adjudication within the meaning of the Three Strikes law ( 667, subds. (b)(i) & 1170.12, subds. (a)(d)), and that defendant had served a prior prison term ( 667.5, subd. (b)).

On count 1, the jury found defendant guilty of first degree murder ( 187, subd. (a)). The jury found true the allegations that defendant committed the murder willfully, deliberately, and with premeditation under section 664, subdivision (a); that defendant perpetrated the murder by shooting from a motor vehicle under sections 190, subdivision (d) and 190.2, subdivision (a)(21); criminal street gang allegations under sections 186.22, subdivision (b)(1)(A) and 190.2, subdivision (a)(22); and firearm allegations under section 12022.53, subdivisions (b) through (e).

On count 2, the jury found defendant guilty of attempted murder ( 664/187, subd. (a)). The jury found not true the allegation that defendant committed the attempted murder willfully, deliberately, and with premeditation ( 664, subd. (a)). The jury found true firearm allegations under section 12022.53, subdivisions (b), (c), and (e); and the criminal street gang allegation under section 186.22, subdivision (b)(1)(A).

On count 4, the jury found defendant guilty of attempted murder ( 664/187, subd. (a)). The jury found true the allegation that defendant committed the attempted murder willfully, deliberately, and with premeditation ( 664, subd. (a)). The jury found true firearm allegations under section 12022.53, subdivisions (b), (c), and (e); and the criminal street gang allegation under section 186.22, subdivision (b)(1)(A).

On counts 3, 5, 7, 8, and 9, the jury found defendant guilty of attempted murder ( 664/187, subd. (a)). The jury found true firearm allegations under section 12022.53, subdivisions (b), (c), and (e); and the criminal street gang allegation under section 186.22, subdivision (b)(1)(A).

On count 11, the jury found defendant guilty of shooting at an inhabited dwelling. The jury found true firearm allegations under section 12022.53, subdivisions (b) and (c); and the criminal street gang allegation under section 186.22, subdivision (b)(1)(A).

The trial court sentenced defendant to state prison as follows:

Count 1 life without the possibility of parole plus a consecutive term of 25 years to life pursuant to section 12022.53, subdivision (d).

Count 2 a consecutive term of two years, four months; plus a consecutive term of 25 years to life pursuant to section 12022.53, subdivision (d); and a consecutive term of 10 years pursuant to section 186.22, subdivision (b)(1)(A).

Count 3 a consecutive term of life with the possibility of parole; plus a consecutive term of 25 years to life pursuant to section 12022.53, subdivision (d); and a consecutive term of 10 years pursuant to section 186.22, subdivision (b)(1)(A).

Count 4 a consecutive term of life with the possibility of parole with a 15 year minimum parole eligibility period pursuant to section 186.22 and a consecutive term of 20 years pursuant to section 12022.53, subdivision (c).

Counts 5, 7, 8, and 9 on each count, a consecutive term of life with the possibility of parole; plus a consecutive term of 20 years pursuant to section 12022.53, subdivision (c); and a consecutive term of 10 years pursuant to section 186.22, subdivision (b)(1)(A).

Count 11 a consecutive term of one year, eight months; plus a consecutive term of 20 years pursuant to section 12022.53, subdivision (c).

The trial court also imposed a $10,000 restitution fine ( 1202.4, subd. (b)) and a suspended $10,000 parole revocation restitution fine ( 1202.45).

On appeal, defendant contends that the trial court improperly instructed the jury on the murder charge; the trial court erred in denying his motion for new trial based on newly discovered evidence; the prosecutor engaged in misconduct by arguing facts outside the record; the street gang special circumstance in section 190.2, subdivision (a)(22) is unconstitutionally vague; the drive-by special circumstance in section 190.2, subdivision (a)(21) violates the Eighth and Fourteenth Amendments to the United States Constitution; because the conduct that supports his conviction for shooting at an inhabited dwelling in count 11 is the same conduct that supports his convictions for murder and attempted murder, section 654 bars separate punishment for his conviction on count 11; because the murder, attempted murder, and shooting at an inhabited dwelling offenses were part of a single, indivisible course of conduct, section 654 bars separate punishment for multiple section 186.22, subdivision (b)(1)(A) criminal street gang enhancements as to those offenses; the trial court erred when it sentenced him to terms of life with the possibility of parole for his convictions for the attempted murders of Kjellesvig (count 3), Jones (count 5), Johnson (count 7), Shada Lofton (count 8), and Shanae Lofton (count 9) because the jury did not find that he committed those offenses with premeditation; because his convictions in counts 3, 5, 7, 8, and 9 should have received determinate sentences one-third of the middle term consecutive under section 1170.1, the accompanying sentence enhancements under section 186.22, subdivision (b)(1)(A) and 12022.53, subdivision (c) should also have been one-third of the middle term under section 1170.1; the sentence enhancements under section 186.22, subdivision (b)(1)(A) on counts 2 and 11 should have been one-third of the middle term rather than the full term; his sentence enhancement on count 2 of 25 years to life pursuant to subdivision (d) of section 12022.53 was error because the information did not allege, and the jury did not find true, a violation of that subdivision; and the cumulative prejudicial effect of the errors warrants reversal. We asked the parties for supplemental briefing addressing the issue of whether the trial court erred in enhancing defendants sentence for violating section 246 in count 11 with the enhancement in section 12022.53, subdivision (c). We affirm the judgment as to defendants convictions, but reverse his sentence for the sentencing errors identified below.

BACKGROUND

The Schoolyard Crips gang engaged in murders, street robberies, narcotic sales, assaults with deadly weapons, drive-by shootings, witness intimidation, carrying firearms, and carjackings. Defendant was a member of the Schoolyard Crips. The 4500s were a club or crew whose activities included stealing cars. Fred Bigbee, Asa Price, Stanley Barlow, and Giovanni Jones were affiliated with the 4500s. In March 2003, the 4500s had moved into Schoolyard Crips territory and were trying to establish themselves in that area. The Schoolyard Crips wanted the 4500s to move out of the area.

In mid-March 2003, graffiti was spray painted on Bigbees car. The graffiti included the letters SYC and 45K. The 45K meant 45 killer. Bigbee and Barlow confronted a group of Schoolyard Crips that included defendant about the graffiti. During the confrontation, defendant admitted that the Schoolyard Crips had spray painted Bigbees car and members of the Schoolyard Crips stated that the 4500s were to get out of the hood. Defendant stated, There aint no more 45, meaning that the 4500s were not to remain in that area any longer.

According to Barlow, Price was seeing Rubi Martinez in the months prior to March 2003. Price testified that he and Martinez went out a few times, but that they did not have a sexual relationship. Defendant had previously dated and had a sexual relationship with Martinez. Martinez testified that she lost her virginity to defendant in February 2003. Defendant told Martinez that he was jealous that she spent time with Price.

On Saturday night, March 22, 2003, defendant chased Price in his car. Later that night, Price went to Andress house at 1810 West Boulevard. About 2:00 a.m., the following morning, Price saw defendant sitting in defendants car in the middle of West Boulevard near 18th Street with its lights off. Defendant remained there for about five minutes before leaving.

On Sunday, March 23, 2003, church services at the First Presbyterian Church of Los Angeles, located at 1809 West Boulevardacross the street from Andress houseended some time before 2:00 p.m. Some of the people who attended services crossed the street to Andress front porch. Among those on the porch were Price, Jones, Christine Kjellesvig, Charisma Johnson, Shada Johnson, Shaena Johnson, and 12 or 13 year old Joseph Swift.

As the people stood on the porch, defendant drove up in a white Oldsmobile 88 and stopped in the same place on West Boulevard that he had stopped earlier that morning. Dwayne Stag Pearson, a fellow Schoolyard Crips gang member, was a passenger in the car. Defendant stopped for about 30 seconds and looked at the porch before slowly driving toward the house.

Price stood up, raised his arms in front of his chest, and asked, Whats up? Defendant responded, Somethings up, and shook his head. When defendant was directly in front of the house, he pointed a gun out the window and fired 10 to 15 shots towards the porch. As defendant fired the gun, the people on the porch got down to avoid being hit. At some point, Swift got up and attempted to run around to the back of the house. Swift was struck by a bullet and killed.

As defendant drove away from the house, he fired four or five shots at Bigbee who was standing in the street near the church. Bigbee returned fire with his Highpoint 9 millimeter gun. First Presbyterian Church of Los Angeles Pastor Catherine Hughes was outside next to her car when the gunfire erupted. When the shooting stopped, Pastor Hughes moved her car to the rear of the church where she discovered that the rear window on the passenger side had been shot.

The police recovered five shell casings found in the street that had been fired from Bigbees gun. Five other shell casings were found at the scene that had all been fired from a different weapon. Starr Sachs, an examiner in the Los Angeles Police Departments Scientific Investigation Division, Firearms Analysis Unit, testified that these latter casings were fired from a Glock or Smith and Wesson pistol. Sachs testified that the bullets found on the porch were fired from a polygonal barrel gun, and the bullets found in the street were fired from a conventional rifling firearm. The bullet found in Pastor Hughes car could not have been fired from a polygonal barrel gun.

On March 26, 2003, defendant had his car taken to a paint and body shop to be repainted blue. Defendant knew they were looking for him his photograph was being shown on the news and he was about to run and did not want his childs mother, Yvonne Campbell, to be without transportation. Defendant then left for Henderson, Nevada.

Defendant testified in his own behalf at trial. He testified that as he approached the porch, Price pointed a gun at him and he ducked. As he ducked, defendant heard a gunshot. Defendant drew his gun a 9 millimeter semiautomatic Smith and Wesson and returned fire over his shoulder, aiming towards Price. As defendant was leaving, Pearson directed his attention to the other side of the car where Bigbee was pointing a gun at defendant. Defendant fired his gun at Bigbee. Defendant claimed he subsequently threw the gun off of the Santa Monica pier.

Defendant called Lawrence Baggett as a firearms expert. Baggett examined the bullet fragment found in Pastor Hughess car. Baggett agreed with the prosecutions firearms expert that Bigbees 9 millimeter Highpoint could not be included or excluded as the firearm that fired that bullet. Baggett plotted the reverse trajectory of the bullet that struck Pastor Hughess car from the location where he was told the car was parked and opined that the bullet could have been fired from the front porch at 1810 West Boulevard. Baggett acknowledged that he could not determine the bullets trajectory with great specificity because he never saw the vehicle. He conceded that the bullet could have been fired at any point in the trajectory from the porch to the car.

Defendant admitted that, shortly after fleeing to Nevada, he called the police to tell them that he would turn himself in, but failed to do so. During that conversation, defendant did not say that somebody had pulled a gun on him. On April 13, 2003, defendant was arrested. On April 23, 2003, a detective interviewed defendant. During that tape-recorded interview, defendant stated that he was not present at the shooting. He later testified that he did not tell the detective that Price had pulled a gun on him because he did not want to be labeled a snitch.

Martinez testified for defendant that defendant called her a couple of days after the shooting. Defendant told her that everybody had guns and started shooting, so he shot back. Defendant told Martinez that Bigbee had a gun. He did not tell her that Price had a gun.

Defendant admitted that he had been a member of the Schoolyard Crips gang, but claimed that he ended his active participation before he was released from prison. Defendant also admitted following Prices car the day before the shootings, but claimed he just wanted to speak with Bigbee because Bigbee was makin a problem out of nothin. Defendant denied that he sat in his parked car outside Andress house the night before the shootings.

DISCUSSION

I. Defendants First Degree Murder Conviction For Murdering Swift

Defendant contends that the jury instruction on second degree felony murder based on the theory that his act of shooting into an inhabited dwelling ( 246) was an inherently dangerous felony was barred by the merger doctrine set forth in People v. Ireland (1969) 70 Cal.2d 522 (Ireland doctrine), that the erroneous application of the second degree felony murder doctrine precluded the jury from considering imperfect self-defense and allowed the jury to elevate the degree of murder to first degree without finding malice, and that the instructions were hopelessly conflicting on whether the jury could use imperfect self-defense to negate malice before reaching a first degree murder conviction. We hold that the jury was properly instructed on second degree felony murder and imperfect self-defense.

A. The Instructions

The trial court instructed the jury on second degree felony murder with a modified version of CALJIC No. 8.32 as follows:

The unlawful killing of a human being, whether intentional, unintentional or accidental, which occurs during the commission the crime of Shooting Into An Inhabited Dwelling is murder of the second degree when the perpetrator had the specific intent to commit that crime.

The specific intent to commit the crime of Shooting Into An Inhabited Dwelling and the commission or attempted commission of that crime must be proved beyond a reasonable doubt.

The actual but unreasonable belief in the necessity to defend oneself against imminent peril to life or great bodily injury is not a defense to the crime of Second Degree Felony Murder based upon the commission of the crime of Shooting Into An Inhabited Dwelling.

The trial court instructed the jury on willful, deliberate, premeditated first degree murder with CALJIC No. 8.20 which provides, in relevant part, All murder which is perpetrated by any kind of willful, deliberate and premeditated killing with express malice aforethought is murder of the first degree. The trial court instructed the jury on express malice with CALJIC No. 8.11, which provides, in relevant part, Malice is express when there is manifested an intention unlawfully to kill a human being.

The trial court instructed the jury on first degree murder committed by discharging a firearm from a motor vehicle with CALJIC No. 8.25.1 which provides, in part:

Murder which is perpetrated by means of discharging a firearm from a motor vehicle intentionally at another person outside of the vehicle when the perpetrator specifically intended to inflict death, is murder of the first degree.

The trial court instructed the jury on imperfect self-defense with CALJIC No. 5.17 as follows:

A person who kills another person in the actual but unreasonable belief in the necessity to defend against imminent peril to life or great bodily injury, kills unlawfully but does not harbor malice aforethought and is not guilty of murder. This would be so even though a reasonable person in the same situation seeing and knowing the same facts would not have had the same belief. Such an actual but unreasonable belief is not a defense to the crime of voluntary or involuntary manslaughter.

As used in this instruction, an imminent peril or danger means one that is apparent, present, immediate and must be instantly dealt with, or must so appear at the time to the slayer.

However, this instruction does not apply to the crime of Second Degree Felony Murder based upon Shooting Into An Inhabited Dwelling.

B. The Ireland Doctrine

In People v. Ireland, supra, 70 Cal.2d 522, the California Supreme Court held that a second degree felony-murder instruction may not properly be given when it is based upon a felony which is an integral part of the homicide and which the evidence produced by the prosecution shows to be an offense included in fact within the offense charged. (Id. at p. 539, footnote omitted.) Defendant contends that the Ireland doctrine is applicable to a killing that results from a shooting into an inhabited dwelling in violation of section 246. Specifically, defendant contends that the jury instruction on second degree felony murder was error under the Ireland doctrine because the underlying purpose of the shooting in the direction of the front porch of the residence was to shoot Asa Price, there was no collateral purpose for the violation of section 246.

The California Supreme Court rejected defendants contention in People v. Hansen (1994) 9 Cal.4th 300. In People v. Hansen, the California Supreme Court held that the offense of discharging a firearm at an inhabited dwelling house does not merge with a resulting homicide within the meaning of the Ireland doctrine, and therefore that this offense will support a conviction of second degree felony murder. (Id. at p. 316.) Defendant contends that we should rely on People v. Robertson (2004) 34 Cal.4th 156 and People v. Randle (2005) 35 Cal.4th 987 rather than on People v. Hansen. In People v. Robertson and People v. Randle, the Supreme Court addressed the question of whether the trial court erred by instructing the jury that defendant could be found guilty of second degree felony murder if the killing was committed in the course of discharging a firearm in a grossly negligent manner in violation of section 246.3. (People v. Randle, supra, 35 Cal.4th at p. 1005.)[4] Neither case reconsidered the application of the Ireland doctrine to violations of section 246, and neither case questioned the holding in People v. Hansen. Indeed, in People v. Robertson the Supreme Court discussed People v. Hansen and its application of the Ireland doctrine at length. (People v. Robertson, supra, 34 Cal.4th at p. 170.) We are bound by the Supreme Courts holding in People v. Hansen. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

Even if the trial court erred in instructing the jury on second degree felony murder, any such error would have been harmless. (People v. Watson (1956) 46 Cal.2d 818.) The jury did not find defendant guilty of second degree felony murder. It found defendant guilty of the first degree murder. The jurys finding that defendant committed the murder willfully, deliberately, and with premeditation, with express malice aforethought, ( 664, subd. (a)) necessarily precludes a determination that the jury convicted defendant of second degree murder which it then elevated to first degree murder based on the allegation that the murder was perpetrated by shooting from a motor vehicle. (See People v. Guiton (1993) 4 Cal.4th 1116, 1130 [an instruction on a legally invalid theory is not prejudicial when it is possible to determine from other portions of the verdict that the jury necessarily found the defendant guilty on a proper theory].) Moreover, the jurys finding that defendant discharged a firearm from a motor vehicle at another person with the intent to inflict death ( 190.2, subd. (a)(21)) was equivalent to a finding of malice. (See People v. Smith (2005) 37 Cal.4th 733, 739 [Intent to unlawfully kill and express malice are, in essence, one and the same. [Citation.]]; People v. Moon (2005) 37 Cal.4th 1, 29 [An intent to kill is the functional equivalent of express malice. [Citation.]].)

C. Imperfect Self-Defense

Defendant contends that the erroneous application of the second degree felony murder doctrine precluded the jury from considering imperfect self-defense and allowed the jury to elevate the degree of murder to first degree without finding malice. He also contends that the instructions were hopelessly conflicting on whether the jury could use imperfect self-defense to negate malice before reaching a first degree murder conviction. These contentions are unavailing.

As set forth above, the jury convicted defendant on the theory of willful, deliberate, premeditated murder. The jury did not convict defendant on the theory of second degree felony murder. Nothing concerning the second degree felony murder theory which, again, the jury did not rely on precluded the jurys consideration of imperfect self-defense with respect to Swifts killing. Implicit in the jurys finding of willful, deliberate, premeditated is a rejection of imperfect self-defense.

As for defendants contention that the jury instructions were conflicting on the appropriate application of imperfect self-defense, there is no such conflict. The trial court instructed the jury on second degree felony murder with a modified version of CALJIC No. 8.32, and on imperfect self-defense with CALJIC No. 5.17. Both instructions told the jury that imperfect self-defense is not a defense to a charge of second degree felony murder based on the crime of shooting into an inhabited dwelling. Nothing in the language of either instruction would convey to the jury that it could not consider imperfect self-defense on a murder theory presented to it other than second degree felony murder. The jury was instructed on imperfect self-defense and told, in effect, that the defense would apply to offenses other than the charge of second degree felony murder based on the crime of shooting at an inhabited dwelling.

II. Defendants New Trial Motion

Defendant contends that the trial court erred when it denied his motion for a new trial under section 1181, subdivision (8) based on newly discovered evidence. We hold that the trial court acted within its discretion in denying the motion.

A.                 Standard of Review

The determination of a motion for a new trial rests so completely within the courts discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears. [Citations.] (People v. Delgado (1993) 5 Cal.4th 312, 328.)

B. Proceedings in the Trial Court

After the jury rendered its verdicts, defendant moved for a new trial based in part on the ground of newly discovered evidence. Attached to defendants motion were the declarations of Harold Williams and Ruth Ramos, respectively an investigator and paralegal with the Office of the Los Angels County Alternate Public Defender, and defense counsel.

Williams and Ramos declared that, on March 15, 2006 after the verdict they interviewed Sidney White in Perris, California. White said that he was at the location when the incident in this case took place. White was there to visit his friend, Andreas. White saw Price stare into the street at a car and then pull a dark colored, 9 millimeter, semi-automatic type gun from his waistband. Another man, whom White did not know, pulled a .38 revolver type gun. White dove into the bushes near the porch. Within seconds, White heard several gunshots that sounded very close to him. White heard approximately 10 shots in all. White was unable to tell if the shots were coming from three different sources. White got a quick glimpse of cars driver; defendant, whom White had known since childhood, was not driving. According to Williams, he served White with a subpoena to appear in court and made arrangements with White to meet him and transport White to court upon Whites return from a trip to Atlanta, Georgia. White was taken into custody on unknown criminal charges in Atlanta.

Defense counsel declared that he had a discussion with approximately six or seven jurors after the verdict. According to defense counsel, there was a unanimous consensus amongst [those jurors] that any additional corroboration of the defense assertion that Mr. Asa Price was in possession of a firearm at the time of the incident would have made a great deal of difference to them. They were adamant regarding the probative value of such corroboration. It was the jurors, not [defense counsel], who raised this point.

The hearing on the new trial motion began on September 11, 2006.[5] During the hearing, defense counsel referred to his and the trial courts Herculean efforts to secure Whites presence from Georgia where he was in custody. According to defense counsel, when such efforts were on the cusp of success, White bailed out. Defense counsel referred to the unsuccessful efforts of his investigator to locate the contact person identified on Whites bail application. Defense counsel then requested one final chance to secure this person, trying to marshal all resources possible and give us two weeks and have that be the deadline for doing it, at which time the court I would ask to make a ruling based upon that motion, our motion for new trial . . . .

The prosecutor opposed defense counsels request for additional time to secure Whites presence. The prosecutor argued that there was no competent evidence that White saw the events leading up to the shooting. The prosecutor also argued that it was clear that White was not going to return for his out-of-state case because the address White gave when he bonded out did not exist and the telephone number White gave for a relative was invalid. The prosecutor concluded that White was hiding from that case and should probably not be believed based on his conduct. Defense counsel stated his belief that there was a strong possibility that White knew where the house stated for bail purposes was but did not have the address completely right.

The trial court granted defense counsel an additional two weeks to locate White. The trial court stated that it had not anticipated sentencing defendant that day because of the pending new trial motion, and it was not prepared to sentence at that time.

Two weeks later, on September 25, 2006, the hearing on defendants motion resumed. Defense counsel stated that he believed that they had contacted White and that White was somehow concerned about something to do with his status on bail, and that looked like it was going to be an obstacle the way we read his feedback after we made contact with him. And lo and behold, he is not here now. Stating that White was critical to the defenses presentation to the trial court, defense counsel stated that the right thing to do would be to issue the body attachment that had been held for White and hope that law enforcement contacted White within the next couple of weeks and bring him before the trial court. Defense counsel then requested an additional two weeks to see if the defense could bring in White or if White was placed in custody.

The prosecutor argued that even if Whites statement were true, it was clear that White did not see the events. The prosecutor said that White alleged that Price drew a 9 millimeter gun, but that no 9 millimeter casings were found near where Price was standing on the porch; White claimed that defendant was not driving the car, but defendant admitted at trial that he was driving; and none of the witnesses who were asked to list the persons on the porch mentioned White. Defense counsel responded that Price testified that a person named Cisco was on the porch and argued that White was Cisco. Defense counsel argued that Whites statement that defendant was not driving supported Whites veracity because it would have been easy to make sure that such a mistake was not made. As for the 9 millimeter shell casings, defense counsel argued that the fact that someone would have been smart enough to pick up a casing, that they were smart enough to help orchestrate the whole testimony presentation ultimately that was given, that to me does not boggle my mind in the least.

The court denied defendants new trial motion. In denying the motion, the trial court observed, In this situation, Mr. Zavidow [defense counsel], I do feel that the court has been more than generous in allowing the investigators for the defendant to look for Mr. White. And unfortunately, Mr. White seems to be a person of such character that hes not readily available. [] And I have to agree with the analysis of the People that it is unlikely that he was in a place to observe what he claims to have observed. I think that the argument that perhaps somebody may have cleaned up the crime scene prior to the police investigators getting there, given the amount of chaos that was going on, I find that to be a less than plausible scenario.

C. Application of Relevant Legal Principles

Section 1181, subdivision (8) provides that a trial court may grant a new trial When new evidence is discovered material to the defendant, and which he could not, with reasonable diligence, have discovered and produced at the trial. When a motion for a new trial is made upon the ground of newly discovered evidence, the defendant must produce at the hearing, in support thereof, the affidavits of the witnesses by whom such evidence is expected to be given, and if time is required by the defendant to procure such affidavits, the court may postpone the hearing of the motion for such length of time as, under all circumstances of the case, may seem reasonable. In ruling on a motion for new trial based on newly discovered evidence, the trial court considers the following factors: 1. That the evidence, and not merely its materiality, be newly discovered; 2. That the evidence be not cumulative merely; 3. That it be such as to render a different result probable on a retrial of the cause; 4. That the party could not with reasonable diligence have discovered and produced it at the trial; and 5. That these facts be shown by the best evidence of which the case admits. [Citations.] (People v. Delgado, supra, 5 Cal.4th at p. 328.)

At the outset, we note that defendants new trial motion was, ultimately, procedurally defective because section 1181, subdivision (8) requires that a defendant support such a motion with affidavits of the witness through whom the newly discovered evidence is to be presented. Here, defendants motion was supported by the hearsay declarations of Williams and Ramos concerning Whites potential testimony. Defendants new trial motion was filed on March 26, 2006, and the trial court allowed defense counsel until September 25, 2006, to produce White or, inferentially, Whites affidavit. Under the circumstances of this case, six months was a reasonable period to expect defense counsel to produce White or his affidavit.

Even if not procedurally defective, defendants motion was unavailing because the proffered evidence was not such that it rendered a different result on retrial probable. (People v. Delgado, supra, 5 Cal.4th at p. 328.) Defendants defense at trial was that Price pointed a gun at him as he drove near the porch, defendant ducked, heard a gunshot, and then returned fire at Price, shooting over his shoulder. According to the Williamss and Ramoss accounts of Whites expected testimony, White saw Price draw a 9 millimeter gun and, after diving for cover, White heard several shots fired. No evidence was presented that any 9 millimeter casings were found on or near the porch, a point defense counsel apparently conceded when he argued that someone could have removed such a casing presumably to hide Prices alleged role in the events. Defense counsels theory that any 9 millimeter casings might have been removed is implausible.

Moreover, when defendant spoke with the police after fleeing to Nevada and said he would turn himself in, he did not say that somebody had pulled a gun on him. Later, when interviewed in custody, he again did not tell the detective that Price had pulled a gun on him. At trial, he explained that he had not told the detective that Price pulled a gun on him because he did not want to be labeled a snitch. Given defendants ready willingness at trial to testify that Price had pulled a gun on him, his explanation for his earlier reticence is questionable.

Also, Whites potential testimony and credibility, based on the Williams and Ramos declarations, were subject to impeachment. White purportedly would have testified that defendant, whom he had known since childhood, was not driving the car. Such testimony would have been directly contradicted by defendants admission at trial that he was driving the car.

Defendant contends that a different result on retrial is probable because defense counsel spoke with six or seven jurors after the verdict who stated that evidence that Price possessed a gun at the time of the incident would have made a great deal of difference to them. A verdict may not be impeached by such references to the jurors mental processes. (Evid. Code, 1150, subd. (a).)

III. Prosecutorial Misconduct

Defendant contends that the prosecutor committed prejudicial misconduct by arguing that Price was not armed with a firearm during the shooting, which argument was based on facts outside the record. We hold that defendant forfeited appellate review of this issue by failing to object to the alleged misconduct and failing to request that the jury be admonished to disregard the prosecutors remarks, the prosecutors remarks to the jury were not misconduct, and the remarks were not prejudicial.

A. Relevant Proceedings

We set forth those parts of the prosecutors closing argument that defendant contends are objectionable in the context of the larger passages from which they are taken. The parts of the prosecutors argument that allegedly constitute misconduct according to defendant are set forth in italics. The prosecutor argued, Asa Price testified that after the shooting, he stuck around. He talked to the police when they came. Okay. He talked a lot about the fact that he never had a gun out there. But if he had pulled a gun, it strikes me, it would make a lot of sense for him to just leave. [] I also wonder, considering the high regard initial witnesses held Bigbee in, considering the fact that witnesses were all interviewed alone, I wonder how the defense can argue to you that Price had a gun out there and that no one would talk about it. People would have. If Asa Price had started this whole thing by pulling out his own gun, it would have been known by the detectives, because in this particular situation, immediately after the death of Joey Swift, witnesses were actually Defense counsel interrupted the prosecutor stating, I would object at this point in reference to hearsay.

Later, the prosecutor argued, In order to believe that Asa Price had a gun, we would have to believe that he never shot it, which is implausible. In these armed confrontations, its implausible that a person would just stand there for a salvo of eight to ten bullets and do nothing. [] But there was no gunshot damage to the front of the church. Closer to home than that, there was no gunshot damage going from the east towards the west, having anything to do with the BMW out front. And there was no gunshot damage on any part of the house. So even when Asa Price was down, when part of the car would have blocked him, the BMW would have blocked him, theres no indication that he shot towards where we know the defendant was shooting from. In other words, Mr. Price never took coverage from the shots and he never shot while standing up. The defendants own car was never struck. Defendant made no objection to the prosecutors argument. On appeal, defendant construes this later part of the prosecutors argument as arguing that it was implausible that Price had a gun.

B. Application of Relevant Legal Principles

A prosecutors trial conduct violates the federal Constitution when it comprises a pattern of conduct so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process. [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury. [Citation.] As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion and on the same ground the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. [Citation.] Additionally, when the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion. [Citation.] (People v. Samayoa (1997) 15 Cal.4th 795, 841.)

Prosecutors have broad discretion to state [their] views regarding which reasonable inferences may or may not be drawn from the evidence. (People v. Cunningham (2001) 25 Cal.4th 926, 1026; People v. Hill (1998) 17 Cal.4th 800, 819 [a prosecutors argument to the jury may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom. [Citations.]) However, a prosecutor commits misconduct if he refers to matters outside the record in argument to the jury. (People v. Cunningham, supra, 25 Cal.4th at p. 1026.) To establish prejudice, the defendant must demonstrate a reasonable probability that he would have received a more favorable result in the absence of the prosecutors alleged misconduct. (People v. Ochoa (2001) 26 Cal.4th 398, 442.)

As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion and on the same ground the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. (People v. Samayoa, supra, 15 Cal.4th at p. 841; People v. Hill, supra, 17 Cal.4th at p. 820; People v. Silva (2001) 25 Cal.4th 345, 373.) A defendant will be excused from the necessity of either a timely objection and/or a request for admonition if either would be futile. [Citations.] In addition, failure to request the jury be admonished does not forfeit the issue for appeal if an admonition would not have cured the harm caused by the misconduct. [Citations.] Finally, the absence of a request for a curative admonition does not forfeit the issue for appeal if the court immediately overrules an objection to alleged prosecutorial misconduct [and as a consequence] the defendant has no opportunity to make such a request. [Citations.] (People v. Hill, supra, 17 Cal.4th at pp. 820-821.)

Defense counsel made a hearsay objection to the first instance of alleged misconduct and no objection of any kind to the second. Defense counsel never objected on the grounds of prosecutorial misconduct or that the statements refer to matters outside the record, and did not ask the trial court to admonish the jury to ignore the prosecutors remarks with respect to either alleged instance of misconduct. Notwithstanding defense counsels failure to object and request an admonition, defendant maintains that we can review this issue because the alleged misconduct could not have been cured by an appropriate and timely instruction You cant unring a bell (People v. Wein (1958) 50 Cal.2d 383, 423 (dis. opn. of Carter, J.).) A timely objection and an admonition to the jury from the trial court, however, could have cured any misconduct. Accordingly, defendant has forfeited appellate review of this claim. (People v. Hill, supra, 17 Cal.4th at pp. 820-821.)

Defendant also argues that defense counsels hearsay objection was, in effect, an objection to prosecutorial misconduct because it signaled to the trial court that the prosecutor was arguing facts outside the record. In support of this argument, defendant reasons that [t]he trial court was not being called upon to sustain a hearsay objection to the testimony of a witness, but to require the prosecutor to confine the closing argument to the evidence presented at trial. Defense counsels objection I would object at this point in reference to hearsay cannot, however, properly be construed as an objection that the prosecutor was committing misconduct by arguing facts outside of the record. A defendants misconduct objection must be specific (People v. Brown (2003) 31 Cal.4th 518, 553), and the defendant must make known the basis of his objection (ibid.; see also People Samayoa, supra, 15 Cal.4th at p. 841 [the defendants objection to prosecutorial misconduct must be on the same ground]).

Even if defendant preserved this issue for review, the prosecutors remarks could be viewed as fair comment on the evidence presented at trial and thus were not misconduct. (People v. Cunningham, supra, 25 Cal.4th at p. 1026; People v. Hill, supra, 17 Cal.4th at p. 819.) The witnesses to the event were undoubtedly interviewed. As to the prosecutors first remark, it was never completed. The prosecutors use of the word implausible in the second remark, in context, was not improper. Moreover, even if the prosecutors remarks were misconduct, the remarks were not prejudicial, as it is not reasonably probable in light of the strong evidence of defendants guilt that he would have received a more favorable result in the absence of any misconduct. (People v. Ochoa, supra, 26 Cal.4th at p. 442.)

IV. Defendants Contention That The Criminal Street Gang Special

Circumstance Is Unconstitutionally Vague

Defendant contends that the criminal street gang special circumstance in section 190.2, subdivision (a)(22) is unconstitutionally vague. Under the authorities, the special circumstance is constitutional.

Section 190.2, subdivision (a)(22) provides, (a) The penalty for a defendant who is found guilty of murder in the first degree is death or imprisonment in the state prison for life without the possibility of parole if one or more of the following special circumstances has been found under Section 190.4 to be true: [] . . . [] (22) The defendant intentionally killed the victim while the defendant was an active participant in a criminal street gang, as defined in subdivision (f) of Section 186.22, and the murder was carried out to further the activities of the criminal street gang.

The trial court instructed the jury that to find the criminal street gang special circumstance true, the jury had to find that defendant was an active participant in a criminal street gang at the time of the killing. The trial court further instructed the jury with CALJIC No. 8.81.22 that Active participation means that the person must have a relationship with the criminal street gang that is more than in name only, passive, inactive or purely technical.

Defendant claims that the instructions definition of active participation was unconstitutionally vague because it fail[ed] to give [him] adequate notice of the conduct triggering punishment for the special circumstance, and fail[ed] to sufficiently narrow the class of death eligible defendants. The California Supreme Court addressed a similar claim in People v. Castenada (2000) 23 Cal.4th 743.

In People v. Castenada, supra, 23 Cal.4th 743, the Supreme Court rejected a claim that the term actively participates from section 186.22, subdivision (a) is unconstitutionally vague.[6] The court construed the statutory language actively participates in any criminal street gang ( 186.22(a)) as meaning involvement with a criminal street gang that is more than nominal or passive. (Id. at p. 747.) In addition, the court observed that the statement in People v. Green (1991) 227 Cal.App.3d 692, 700 that a person actively participates in a criminal street gang by involvement with the gang that is more than nominal, passive, inactive or purely technical . . . is fully consistent with our conclusion in this case. (People v. Castenada, supra, 23 Cal.4th at p. 752, fn. 3, italics added.)

The trial court instructed the jury that active participation is a relationship with a criminal street gang that is more than in name only, passive, inactive or purely technical. This language is supported by the Supreme Courts definition of actively participates in People v. Castenada, supra, 23 Cal.4th at page 747 as meaning involvement that is more than nominal or passive and virtually the same language from People v. Green, supra, 227 Cal.App.3d at page 700 that the Supreme Court approved in People v. Castenada, supra, 23 Cal.4th at page 752, footnote 3 as being fully consistent with its definition of actively participates. Accordingly, the criminal street gang special circumstance is not unconstitutionally vague.

V. Defendants Contention That The Drive-By Special Circumstance Is

Unconstitutional

Defendant contends that the drive-by special circumstances in section 190.2, subdivision (a)(21)[7]is unconstitutional on its face and as applied. According to defendant, the special circumstance violates the due process clause of the Fourteenth Amendment, defendant argues, because it reaches conduct that does not rationally relate to the purpose of the statutory provision. It violates the Eighth Amendment because it includes conduct, a spontaneous and unpremeditated murder, that does not warrant death-eligibility. It penalizes a factual characteristic of an offense, being in a vehicle, which is not necessarily related to culpability. Its application results in a more severe punishment for a classic second degree murder than punishment imposed for premeditated, first degree murder; and fails to sufficiently distinguish drive-by murders from other first degree murders to justify imposition of the death penalty. The special circumstance in section 190.2, subdivision (a)(21) is constitutional.

Defendant acknowledges that the constitutionality of section 190.2, subdivision (a)(21) was upheld in People v. Rodriguez (1998) 66 Cal.App.4th 157. In People v. Rodriguez, the court of appeal rejected a number of constitutional attacks on section 190.2, subdivision (a)(21), including claims that it is overbroad and unconstitutional on its face and as applied. (People v. Rodriguez, supra, 66 Cal.App.4th at pp. 166-181.) The court stated that the statute was not facially unconstitutional because it is not so overbroad as to conflict with or chill any constitutional provisions, and drive-by shootings are a threat to society that the legislature could validly seek to deter. (Ibid.) Because there had to be an intent to kill, the provision did not constitute cruel and/or unusual punishment under the United States or California Constitutions. We follow the holding in People v. Rodriguez in rejecting defendants position.

VI. Section 654 Does Not Bar Imposition Of Sentence For Defendants Conviction

For Shooting At An Inhabited Dwelling

Defendant contends that the conduct that supports his conviction for shooting at an inhabited dwelling (count 11) is the same conduct that supports his convictions for his murder and attempted murder. Accordingly, defendant argues, under section 654[8]he may not be punished separately for his conviction on count 11. The trial court properly sentenced defendant for count 11.

The test for determining whether section 654 prohibits multiple punishment has long been established: Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one. [Citation.] (People v. Britt (2004) 32 Cal.4th 944, 951-952.) If, on the other hand, defendant harbored multiple criminal objectives, which were independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of each objective, even though the violations shared common acts or were parts of an otherwise indivisible course of conduct. [Citation.] (People v. Harrison (1989) 48 Cal.3d 321, 335.)

[T]he limitationsof section 654 do not apply to crimes of violence against multiple victims. (People v. King (1993) 5 Cal.4th 59, 78 [19 Cal.Rptr.2d 233, 851 P.2d 27] (King).) As we have explained: The purpose of the protection against multiple punishment is to insure that the defendants punishment will be commensurate with his criminal liability. A defendant who commits an act of violence with the intent to harm more than one person or by a means likely to cause harm to several persons is more culpable than a defendant who harms only one person. For example, a defendant who chooses a means of murder that places a planeload of passengers in danger, or results in injury to many persons, is properly subject to greater punishment than a defendant who chooses a means that harms only a single person. This distinction between an act of violence against the person that violates more than one statute and such an act that harms more than one person is well settled. Section 654 is not . . . applicable where . . . one act has two results each of which is an act of violence against the person of a separate individual. [Citations.] (Neal v. State of California (1960) 55 Cal.2d 11, 20-21 [9 Cal.Rptr. 607, 357 P.2d 839].) (People v. Oates (2004) 32 Cal.4th 1048, 1063.)

[W]hether a crime constitutes an act of violence that qualifies for the multiple-victim exception to section 654 depends upon whether the crime . . . is defined to proscribe an act of violence against the person. (People v. Solis (2001) 90 Cal.App.4th 1002, 1023.) Attempted premeditated murder qualifies as a crime of violence for purposes of applying this multiple victim exception. [Citations.] (People v. Oates, supra, 32 Cal.4th at p. 1063.) The crime of discharging a firearm at an occupied building in violation of section 246 also is subject to the multiple victim exception to section 654. (People v. Cruz (1995) 38 Cal.App.4th 427, 434-435.)

In People v. Cruz, supra, 38 Cal.App.4th 427, Cruz and his gang exchanged words with Alvarado, a security guard at a swap meet, after Alvarado ordered Cruz and his fellow gang members to leave the swap meet. (Id. at p. 430.) Shortly after leaving, Cruz returned and fired a shot that nearly hit Alvarado as he stood inside the glass door of a building at the swap meet. (Id. at p. 431.) Alvarado dropped to the floor and tried to move children and other people standing near the door. (Ibid.) Cruz then fired three more shots in the direction of Alvarados doorway. (Ibid.) Cruz was convicted of one count of assault with a firearm ( 245, subd. (a)(2)) and one count of discharging a firearm at an occupied building ( 246) and sentenced to concurrent terms for those convictions. (People v. Cruz, supra, 38 Cal.App.4th at p. 430.)

On appeal, Cruz contended that section 654 barred imposition of concurrent terms for his convictions of assault and discharging a firearm at an occupied building. (People v. Cruz, supra, 38 Cal.App.4th at p. 434.) The Court of Appeal rejected Cruzs contention, reasoning that although Alvarado was a victim of both offenses, he was not the only victim of the discharging a firearm at an occupied building offense. (Id. at pp. 434-435.) The children and other people standing near Alvarado, whom Alvarado tried to move as bullets shattered the glass front door, were at risk from bullets and flying glass and also were victims. (Id. at p. 434.)