P. v. Jones

Filed 1/21/09 P. v. Jones 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEALS from judgments of the Superior Court of Los Angeles County.

Kelvin D. Filer, Judge. Affirmed with directions.

Diane E. Berley, under appointment by the Court of Appeal, for Defendant and Appellant Timothy Jones.

Marilee Marshall & Associates, Inc. and Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant William Eugene Joseph.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Jaime L. Fuster and Robert S. Henry, Deputy Attorneys General, for Plaintiff and Respondent.

________________

Timothy Jones (Jones), also known as Timothy Germane Jones, and William Eugene Joseph (Joseph) appeal from the judgments entered upon their convictions by jury of attempted murder (Pen. Code, 664/187, subd. (a)).[1] As to both appellants, the jury also found to be true the special allegations that the attempted murder was willful, deliberate and premeditated within the meaning of section 664, subdivision (a), that a principal personally discharged a firearm within the meaning of section 12022.53, subdivisions (b), (c), (d) and (e)(1), and that the offense was committed for the benefit of a criminal street gang within the meaning of section 186.22, subdivision (b)(1)(C). As to Jones, the jury further found to be true the allegations that he personally discharged a handgun within the meaning of section 12022.53, subdivisions (b), (c) and (d), and personally inflicted great bodily injury within the meaning of section 12022.7, subdivision (a). The trial court sentenced Jones and Joseph to aggregate prison terms of 40 and 32 years to life, respectively.

Appellants contend that (1) the trial court deprived them of due process, equal protection, a jury determination, and a fair trial under the federal and state Constitutions by (a) instructing in accordance with CALCRIM No. 226, and (b) instructing in accordance with CALCRIM No. 1403, and (2) the trial court deprived them of due process, a fair trial and trial by jury by (a) failing to bifurcate the testimony of the prosecutions gang expert, and (b) using the names of persons involved in this matter in hypothetical questions posed to the gang experts, thereby usurping the jurys function. Joseph further contends that (3) he was denied his right to self-representation and/or the appointment of new counsel. Jones further contends that (4) he was deprived of due process under the federal and state Constitutions because cumulative errors deprived him of a fair trial, and (5) the abstract of judgment must be corrected to reflect that the
15-year minimum eligible parole date is not an additional life sentence. Each appellant joins in the contentions of the other to the extent applicable. (Cal. Rules of Court, rule 8.200; People v. Stone (1981) 117 Cal.App.3d 15, 19, fn. 5.)

We affirm.

FACTUAL BACKGROUND

The prosecutions evidence

The shooting

On January 28, 2007, at approximately 10:20 p.m., Marlon Hicks (Hicks)[2]and his girlfriend Jacquisha Montgomery (Montgomery) were walking near the intersection of 115th and Towne, in the City of Los Angeles. Montgomery lived on Towne. They were only a block from 118 East Coast Crips gang (118 Crips) territory. Hicks saw a white, four-door Cadillac (Cadillac) drive by, go around the block, and reappear. It rapidly approached him with its headlights off. Hicks did not see anyone inside, anyone exit the car or anyone run past him. He last remembered hearing the Cadillac skid and screech to a stop.

Montgomery heard six or seven gunshots and saw Hicks on the ground. She ran and hid under a vehicle. When the shooting stopped, she emerged and returned to Hicks, who had been shot in the back, head and chest.[3] She testified that she did not see the Cadillac or front seat passenger, though she had told the prosecutor that she saw a white, four-door vehicle and that the front passenger was the shooter.

At the time of the shooting, uniformed Los Angeles Police Department
Officers Christian Rueda and Darryl Danaher were on patrol in a marked patrol car.
Officer Rueda was driving. He saw the Cadillac stopped, its lights off, and an arm extended outside the front passenger side. Both officers heard five or six shots and saw a muzzle flash from that side of the car. They activated all of their lights, illuminated the Cadillac with the spotlight and drove towards it. After the shots were fired, the Cadillac immediately turned and moved towards the police vehicle at 25 to 35 miles per hour. The officers exited and drew their weapons as the Cadillac collided with their car. They had a clear, unobstructed view of the Cadillacs passenger compartment and were able to see Joseph driving and Jones in the front passenger seat.

Officer Danaher yelled for the occupants of the Cadillac to put their hands up. Joseph and Irving Barner (Barner), the rear passenger, did so in compliance. The front passenger, wearing a black jacket and blue jean shorts, exited and ran, despite being told to stop. Officer Rueda pursued him, saw him run through a driveway and called for backup. He described the suspect as wearing a black hoodie and blue jean shorts.

A police airship detected a heat signature on East 115th Street. A search dog was deployed, and officers found Jones hiding in a trash can in a detached garage and a black jacket behind the garage. Two citations and a Notice [for Jones] to Appear were in the jacket pocket.[4] The officers also recovered a cell phone case from a nearby trash can. When Jones was brought out from the trash can, Officer Danaher identified him.

The investigation

At a field showup a half hour after the shooting, Officer Rueda identified Jones as the person he was chasing, although Jones was not wearing the black hoodie Officer Rueda had described. The officer also identified Jones at the preliminary hearing.

Latrell Widemon (Widemon), Montgomerys neighbor, was parked in her driveway near the scene of the shooting when she heard four or five gunshots. She exited her car and ran to Montgomery, whom she saw emerging from under a car, screaming and crying. She then saw a male Black, wearing a black top and black pants running from a police officer. At a field showup, Widemon identified Jones as the person she saw running. At trial, she denied telling officers that Jones was, or looked like, the person who was running, and denied describing him, except to say he was wearing black. When asked if she saw the person running, she testified, Kind of. Not really see the person, but I just saw somebody running fast and the police officer running as well.[5]

The Cadillac was searched. A handgun was found between the front passenger and drivers seats, with six spent .38-caliber casings inside, and a cell phone on the front seat. Inside the glove compartment was a vehicle transfer form with Josephs name on it, and in the trunk, a turquoise bandana with handwriting on it. A baseball cap was found in the parkway and two black knit gloves on the sidewalk. The creases in the cell phone case recovered from the trash can matched the cell phone. The handle of the gun was swabbed for DNA samples which did not match DNA from Jones.

On February 9, 2007, Officer Patrick Flaherty, the primary investigating officer, and his partner interviewed Hicks at the hospital. He told them he saw a white, four-door Cadillac with its headlights off. The shooter was a Black male, who exited from the front passenger side. Hicks heard five gunshots and remembered being shot and seeing a police officer chasing someone. At trial, however, Hicks did not recall telling the officers that the right front passenger was a Black male who exited the car and shot him or seeing the police chase the suspect.

Gang expert testimony

Officer Timothy Colson, a gang expert, investigated, among others, the
Main Street Mafia Crips, also known as the 98 Main Street Crips (Main Street Crips).
Officer Colson was familiar with Jones, who admitted membership in the Main Street Crips. Jones also wore gang tattoos and associated with Hoover gang members. The Main Street Crips primary activities were burglaries, murders, shootings, narcotics sales and robberies. Officer Colson testified that there were two recent convictions of Main Street Crips members; one for murder and another for robbery.

Officer Colson testified that the 118 Crips, whose territory included 115th Street and Towne, was the mortal enemy of the Main Street Crips with whom it had been feuding for decades. The 94 Hoover Criminals (Hoover gang) was an ally of the Main Street Crips and also a long standing rival of the 118 Crips. Officer Colson opined that if members of the Main Street Crips entered 118 Crip territory, they would be down there to do bad things. They shouldnt be there because theyll be shot on sight. In response to a hypothetical based upon the evidence presented, Officer Colson opined that the shooting was for the benefit of the Main Street Crips and Hoover gang. It intimidated victims, making them afraid to testify, and enhanced the reputation of the shooter within his gang, as he committed a crime near 118 Crips headquarters.

Officer Michael Nagle also testified as a gang expert. He focused on the Hoover gang, which was involved in drive-by shootings, narcotics sales, burglaries, robberies and murder. Officer Nagle recognized Joseph and Barner as members of the Hoover gang. He had stopped Jones in a Hoover gang hangout area. Anthony Monroe (Monroe), Josephs half-brother, was also a member of the Hoover gang. Officer Nagle testified that there were two recent convictions of Hoover gang members, one for attempted murder and another for possession of cocaine for sale.

Officer Nagle said that the gang graffiti on the bandana found in the trunk of the Cadillac referred to gangs who were enemies of the Hoover gang. He opined that finding the bandana in the trunk, with a Main Street Crips gang member and two Hoover gang members in the car, suggested that the Main Street Crips gang member was helping the others. Officer Nagle also opined that the shooting was for the benefit of the Hoover gang and enhanced the gangs reputation by creating an atmosphere of intimidation and neighborhood control. The shooting demonstrated that they could enter rival gang territory and shoot someone, enhancing respect for the gang.

The defenses evidence

Testifying on his brothers behalf, 18-year-old Monroe testified that he had been a Hoover gang member for three years. He and Joseph had numerous family members in that gang, but Joseph had never gang banged and told Monroe to stay away from gangs. Barner was Monroes best friend. The blue bandana belonged to Monroe.

Joseph testified on his own behalf. He did not know Jones and did not recall being seen with him. Jones was not in the car on January 28, 2007. The person in the right front passenger seat was a man named Carter or S Cat (Carter). He was homeless and staying with Joseph for a few days in return for installing Josephs car audio system. Carter was wearing Monroes black hoodie.

On the night of the shooting, Joseph was driving with Barner and Carter to Josephs aunts house. He did not know Carter had a gun, but knew he was a Six-Pack East Coast Crip gang member. Joseph had just purchased the Cadillac. Prior to the day of the shooting, he began having problems with it. It would slow down and stop for no apparent reason, and the headlights would start flashing on and off. Joseph would turn them off for five minutes, then try to put them on again. He was not afraid to enter the area around 115th Street and Towne because he had been going there for years.

As they approached that area, Carter asked to be dropped off because he had seen some young women. He asked Joseph to back up or make a U-turn, but Joseph could not as he was an inexperienced driver, the car was large and the street narrow. Therefore, he drove around the block. When he returned to 115th Street and Towne, Carter jumped from the car and began shooting. Joseph tried to leave, but the car malfunctioned and would not accelerate. Carter returned to the car, and Joseph yelled, Get the fuck out of my car. What are you doing?

A police car turned onto Towne. Josephs foot was on the gas. When he removed it, the car malfunctioned and ran into the police car. He did not try to hit it. When the officers told him, Freeze, motherfucker. Dont move or Ill blow your fucking head off, he remained in the car, and Carter jumped out and ran.

Rebuttal

Officer Flaherty testified that he never received any information about an individual named Carter or S Cat. Though he had been a gang officer, he never heard of a gang called Six-Pack East Coast Crips.

DISCUSSION

I.Instructional errors

The trial court instructed the jury on how to evaluate the believability of witnesses in accordance with CALCRIM No. 226[6]and how to consider gang evidence in accordance with CALCRIM No. 1403.[7]At the instruction conference, the trial court discussed at least one modification to CALCRIM No. 226, to which the parties agreed. There is no indication in the record that any objection was made to giving that instruction or CALCRIM No. 1403.

A. Contentions

Appellants contend that the trial court deprived them of due process, a fair trial, a jury determination, and equal protection under the federal and state Constitutions by instructing the jury in accordance with CALCRIM Nos. 226 and 1403.

Respondent contends that appellants have forfeited their challenges to these instructions by failing to raise them in the trial court.[8]We agree that the claims have been forfeited, but nonetheless conclude that even if preserved, they are without merit.[9]

B. Forfeiture

Generally, [a] party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language. (People v. Hart (1999) 20 Cal.4th 546, 622; People v. Gonzalez (2002) 99 Cal.App.4th 475, 483.) Appellants instructional claims, discussed in detail below, question the clarity and completeness of the instructions. Such claims are forfeited because they were not preserved for appeal by objection in the trial court. Even if these claims had been preserved, we would reject them.

C. Standard of review

Errors in jury instructions are questions of law which we review de novo. (People v. Russell (2006) 144 Cal.App.4th 1415, 1424.)

D. CALCRIM No. 226

1. Joness claim

Jones challenges that portion of CALCRIM No. 226 which states, If you decide that a witness deliberately lied about something significant in this case, you should consider not believing anything that witness says. Or, if you think the witness lied about some things, but told the truth about others, you may simply accept the part that you think is true and ignore the rest. He argues that CALCRIM No. 226 fails to instruct the jury as to how it should evaluate testimony that is inadvertently mistaken or inaccurate. As a result, the jury was instructed with unmodified No. 226 that unless it concluded the two witnesses who identified appellantOfficer Rueda and Latrell Widemonwere deliberately lying, it must believe their testimony identifying appellant.

We evaluate whether an instruction is misleading by reviewing the instructions as a whole. (People v. Campos(2007) 156 Cal.App.4th 1228, 1237 (Campos).) An instruction is only misleading if in the context of the entire charge, there is a reasonable likelihood that the jury misconstrued or misapplied its words. (Ibid.; People v. Dunkle (2005) 36 Cal.4th 861, 899.)

Joness argument distorts beyond recognition CALCRIM No. 226. Nothing in that instruction can reasonably be construed as requiring that an inadvertent mistake or inaccuracy in testimony must be believed. First, the instruction says nothing about how to evaluate such evidence. It deals only with deliberate lies, and makes clear that that is only one of the nonexclusive list of factors contained in the instruction that the jury may consider in evaluating the believability of a witnesss testimony. One cannot extrapolate from the failure to expressly deal with an inadvertent mistake or inaccuracy that such evidence must be believed. Second, the instruction does not even mandate that the jury reject all testimony of a witness who has lied, but only authorizes the jury to consider rejecting all of that witnesss testimony. CALCRIM No. 226 also states that the jury alone must judge the credibility or believability of the witnesses, is to decide if the testimony is true and accurate and can believe all, part, or none of any witnesss testimony. (CALCRIM No. 226.) It further states that the jury can consider anything that reasonably tends to prove or disprove the truth or accuracy of that testimony. (CALCRIM No. 226, italics added.) These directions make clear that the jury need not believe a witness who is simply mistaken or inaccurate in the testimony. Consequently, Joness constitutional claims are premised upon a faulty construction of CALCRIM
No. 226 and must therefore be rejected.

2. Josephs claim

Joseph challenges that portion of CALCRIM No. 226 which lists as a factor to be considered in determining the believability of a witness, whether the witnesss testimony was influenced by a factor such as bias or prejudice, a personal relationship with someone involved in the case, or a personal interest in how the case is decided? He argues that that language impermissibly singled out and focused the jury on his and his brothers testimony because they were the only witnesses who had any personal interest in the outcome of the case. It instructed the jury improperly to consider Josephs interest in the outcome of the case, to undermine his testimony and infer dishonesty. This contention is meritless.

A trial court should not single out and highlight the testimony of any one witness and charge the jury how his evidence should be considered. (People v. Wright (1988) 45 Cal.3d 1126, 1135, fn. 6.) The language Joseph challenges does not do so as it makes no reference to any particular witness, but sets forth a rule of general applicability. The instruction could also be applied to witnesses other than Joseph and his brother. The police officers involved in apprehending Joseph could be viewed as biased or prejudiced against him and, as law enforcement officers, can be thought to have a personal interest in the outcome of the arrests in which they were involved. Widemon lived in the same building as Montgomery, knew her and ran to assist her immediately after the shooting. The jury might have considered her as having a personal relationship with the victim. Hicks, who will never walk again because of appellants crime, certainly had an interest in seeing his attackers punished. In short, the directions of CALCRIM No. 226 were neither aimed at Joseph or his brother nor only applicable to them. Further, CALCRIM No. 226 did not require that the jury disbelieve someone simply because they had a relationship with someone involved in the proceeding or an interest in the outcome. It simply allowed the jury to consider that factor in evaluating the believability of a witness.

The cases Joseph cites, People v. Lyons (1958) 50 Cal.2d 245, 271, disapproved of in People v. Green (1980) 27 Cal.3d 1, and People v. Wright, supra, 45 Cal.3d at
page 1135, footnote 5 and People v. Arlington (1900) 131 Cal. 231, 233234 fail to support his claim. In each, the instruction at issue was not an objective rule of general applicability, but specifically referred to a person involved in the proceeding or specific evidence.

E. CALCRIM No. 1403

1. Joness claim

CALCRIM No. 1403 limits the purposes for which gang evidence may be considered by the jury, precluding its admission to show a witnesss bad character or criminal disposition. Appellants challenge the language in the instruction that, You may also consider this evidence [gang evidence] when you evaluate the credibility or believability of a witness. . . . Jones argues that although the instruction limits the purposes for which gang evidence can be admitted, the challenged language allows gang evidence to be admitted without limitation. It told the jury that Josephs gang affiliation made him less believable and less credible and permitted it to disregard Josephs testimony that Jones was not the shooter.

Contrary to Joness assertion, CALCRIM No. 1403 does not allow unlimited admission of gang evidence. It specifically states that such evidence can be admitted only for specified purposes, and not to show the defendants bad character or criminal disposition. CALCRIM No. 226 instructed the jury that it alone, relying on common sense and experience, must decide the credibility of witnesses and that it may consider any evidence reasonably bearing on the truth or accuracy of testimony in deciding a witnesss credibility. Further, CALCRIM No. 1403 allows admission of gang evidence to evaluate credibility and believability of any witness, not only Joseph and Monroe. It applies to witnesses such as Hicks, Montgomery and Widemon, all of whom testified reluctantly, reneging on out-of-court statements, suggesting that they feared gang retaliation. The challenged language did not compel the jury to disbelieve a person because of evidence of gang activity but merely provided that gang evidence was one factor it might consider on believability. It is unlikely that the jury would misconstrue this instruction in the manner suggested by Jones. (Campos, supra, 156 Cal.App.4th at p. 1237.)

2. Josephs claim

Joseph argues that CALCRIM No. 1403 impermissibly instruct[ed] the jury to more heavily scrutinize the only two defense witnesses, [Joseph] and his brother Anthony Monroe, against whom gang evidence was used to discredit their testimony and infer dishonesty. This language also impermissibly and exclusively focused on the only defense evidence presented, namely the testimony of [Joseph and] his brother Monroe, because they were the only witnesses at trial against whom evidence of current gang membership and/or affiliation was introduced. It violates the principle that the trial court should not single out the testimony of defense witnesses for more scrutiny than prosecution witnesses.

We also reject Josephs attack on CALCRIM No. 1403. That instruction contains a general statement, referring to none of the parties or witnesses involved in this matter, by name or otherwise, allowing, not requiring, a jury to consider gang evidence on the question of believability of a witness. It is not directed exclusively at Joseph and Monroe, for whom there was evidence of gang membership, but is also applicable to the prosecutions witnesses who partially recanted their out-of-court statements at trial, likely from fear of gang retaliation. CALCRIM No. 1403 is neither contrary to law nor misleading and presents little danger that it was misconstrued by the jury.

II. Gang expert evidence

A. Failure to bifurcate

1. Contentions

Appellants were charged with a gang enhancement. The defense did not request to bifurcate gang expert testimony, and the trial court did not do so. Jones contends that the trial court erred and denied him due process and a fair trial by failing to bifurcate the gang expert testimony. He argues that while gang evidence is admissible when relevant to a material issue, some gang evidence is of so little relevance to guilt and so prejudicial that it unfairly affects the jurys evaluation of his guilt and insinuates guilt by association.

Respondent contends that this issue has been forfeited for failure of appellant to request bifurcation in the trial court. We agree with respondent.

2. Forfeiture

A right to bifurcate certain issues, such as prior convictions, from the trial of the underlying charges has been found in section 1044. (People v. Calderon (1994) 9 Cal.4th 69, 75.) That section gives the trial court discretion to fashion criminal procedural rules as justice dictates. (People v. Ruiloba (2005) 131 Cal.App.4th 674, 691.) Generally, there is no obligation for the trial court to bifurcate the gang issue sua sponte. (See People v. Maury (2003) 30 Cal.4th 342, 392 [analogously concluding that the trial court has no sua sponte duty to exercise its discretion to sever counts under section 954 because it requires that the defendant first make a showing of good cause].) It is counsels job to request bifurcation of the gang evidence issues if counsel believes a joint trial will be unduly prejudicial. Objections to the admission of evidence are forfeited on appeal if not raised in the trial court. (People v. Richardson(2008) 43 Cal.4th 959, 1002.) Consequently, Jones waived this claim, by not requesting bifurcation in the trial court.

Jones argues that he has not forfeited this claim of error because the error affected his substantial rights. ( 1259.) We do not find that the failure to bifurcate relevant gang evidence in this case affects appellants substantial rights so as to excuse his failure to raise the question in the trial court.

Jones also argues that, if forfeited, the bifurcation issue can be raised through a claim that his counsel was ineffective in failing to assert it. To establish ineffective assistance of counsel, appellant must demonstrate that his counsels performance was deficient and that there is a reasonable probability that but for the deficiency a more favorable result would have ensued. (People v. Hernandez (2004) 33 Cal.4th 1040, 10521053 (Hernandez).) As discussed below, there is no reasonable probability that the trial court would have, or should have, granted a request for bifurcation had it been made.

3. Propriety of bifurcation

California courts have long recognized the potential prejudicial effect of gang evidence. As a result, our Supreme Court has condemned the introduction of such evidence if only tangentially relevant, given its highly inflammatory impact.
(People v. Cox (1991) 53 Cal.3d 618, 660.) Nonetheless, when logically relevant to some material issue in a case, other than character trait, gang evidence is admissible. (Evid. Code, 210; Hernandez, supra, 33 Cal.4th at p. 1049.) When the gang enhancement is alleged, gang evidence is necessarily admissible to prove its elements.[10]When the very reason for the underlying crime is gang related, gang evidence is admissible. (See, e.g., People v. Frausto (1982) 135 Cal.App.3d 129, 140 [motive and intent].)

As previously stated, a right to bifurcate certain issues, such as prior convictions, from trial of the underlying offense has been found in section 1044. (People v. Calderon, supra, 9 Cal.4th at p. 75.) This right has been extended to bifurcation of the gang enhancement. (Hernandez, supra, 33 Cal.4th at p. 1049.) But the gang enhancement, unlike prior conviction allegations, is not perfunctorily bifurcated. (Id.at p. 1048.) A gang enhancement is different from the prior conviction at issue . . . .  A prior conviction allegation relates to the defendants status and may have no connection to the charged offense; by contrast, the criminal street gang enhancement is attached to the charged offense and is, by definition, inextricably intertwined with that offense. So less need for bifurcation generally exists with the gang enhancement than with a prior conviction allegation. (Ibid.) The defendant must show that there is a substantial danger of undue prejudice. (Id.at p. 1050.) Still, the trial court has discretion to bifurcate the gang enhancement in appropriate cases (see id. at p. 1048), when gang evidence is so prejudicial.

Had a request for bifurcation been made here, it is unlikely Jones could have established a substantial danger of undue prejudice. (Hernandez, supra, 33 Cal.4th at p. 1050.) Appellants were charged with a gang enhancement, making the gang evidence directly relevant to its proof. That evidence was also substantially intertwined with the attempted murder charge. Jones was a member of the Main Street Crips and Joseph and Barner members of the Hoover gang. Jones shot at Hicks and Montgomery for no apparent reason as they walked down the street in rival gang territory. The expert gang evidence was essential in explaining the motive for the shooting, which the gang experts indicated was to enhance the reputation of the perpetrators gangs and the reputation of the perpetrators within their respective gangs. The People are entitled to introduce evidence of gang affiliation and activity where such evidence is relevant to an issue of motive or intent. [Citation.] [B]ecause a motive is ordinarily the incentive for criminal behavior, its probative value generally exceeds its prejudicial effect, and wide latitude is permitted in admitting evidence of its existence. [Citations.] (People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1550.) The gang evidence was essential to refuting Josephs explanation that Jones was not in the car, that Joseph did not know Carter had a gun he was going to use, and Carter jumped unexpectedly from the car and began shooting. The evidence was also critical to explaining that the manner in which the crime was accomplished was not as Joseph testified but consistent with the manner in which gangs conduct driveby shootings; a car with its headlights off circled the victims, one of the occupants exited and fired multiple shots and then attempted to escape. To the extent the evidence supporting the gang enhancement would be admissible at a trial of guilt, any inference of prejudice would be dispelled, and bifurcation would not be necessary. (Hernandez, supra, 33 Cal.4th at pp. 10491050.)

While some of the gang evidence, such as evidence of the prior predicate offenses, were minimally, if at all, relevant to the underlying charge, they were not so extraordinarily prejudicial, and of so little relevance to guilt, as to threaten to sway the jury to convict regardless of the defendants actual guilt. (Hernandez, supra, 33 Cal.4th at p. 1049.) Appellants were charged with a senseless and unprovoked shooting that could have resulted in murder, and did result in leaving the victim a paraplegic. This offense was as heinous as the predicate offenses, making testimony about them less prejudicial. Further, the evidence of the predicate offenses was brief and undetailed. Moreover, [e]ven if some of the evidence offered to prove the gang enhancement would be inadmissible at a trial of the substantive crime itselffor example, if some of it might be excluded under Evidence Code section 352 as unduly prejudicial when no gang enhancement is chargeda court may still deny bifurcation. (Hernandez, supra, at p. 1050.) An additional consideration is that trial of the underlying charge and gang enhancement together ordinarily would avoid increased expenditure of funds and judicial resources which may result from separate trials. (Ibid.)

B. Gang expert testifying on ultimate issue

1. Background

At trial, the prosecutor posed several hypothetical questions to each of the two gang experts. He asked Officer Colson whether under the facts presented the offense was committed for the benefit of a criminal street gang. In the question, the prosecutor used the names of persons involved in the case rather than hypothetical names.[11]Officer Colson responded that the shooting was for the benefit of the Main Street Crips and the Hoover gang because it created an atmosphere of intimidation.

Before the next break in the proceedings, the trial court admonished the jury that the last few questions were hypothetical in form and that such questions, asks the witness to assume certain facts are true and to give an opinion based on the assumed facts. Its going to be up to you to decide whether an assumed fact has been proved.

Later in the trial, the prosecutor asked Officer Nagle, another gang expert, a similar hypothetical, using names of persons involved in the case, focusing on what Officer Nagle knew about the Hoover gang.[12] Officer Nagle responded that in his opinion the crime was for the benefit of the Hoover gang. The trial court did not repeat the admonition that it had given after Officer Colson had testified.

During the prosecutors statement of the hypothetical to Officer Nagle, Josephs counsel objected that it was an improper hypothetical. At sidebar, he explained that he objected that the prosecutor referred to the shooter as Joseph, when he appeared to mean Jones. The prosecutor agreed, went back on the record and corrected the name.

Before the jury retired for deliberations, the trial court gave CALCRIM No. 332 which states in part: An expert witness may be asked a hypothetical question. A hypothetical question asks the witness to assume certain facts are true and to give an opinion based on the assumed facts. It is up to you to decide whether an assumed fact has been proved. If you conclude that an assumed fact is not true, consider the effect of the experts reliance on that fact in evaluating the experts opinion.

2. Contentions

Joseph contends that the hypotheticals given to the gang experts usurped the jurys function, thereby depriving him of his Fifth, Sixth and Fourteenth Amendment rights to trial by jury, a fair trial and due process. He argues that the prosecutor questioned the gang experts about their opinions regarding not hypothetical gang members nor hypothetical victims, but the specific people involved in appellants case. The use of specific names and dates made the questions posed of the experts more than naked hypothetical opinions upon which the jurors could apply their own finding based on the evidence. The format of the questions and the use of specific names elicited improper opinions on specific intent and usurped the providence [sic] of the jury as finders of fact.

Respondent contends that this contention was forfeited by virtue of the failure of defense counsel to object to the hypothetical on the ground asserted. We agree.

3. Forfeiture

Josephs counsel objected to the hypothetical to Officer Nagle, claiming it incorrectly referred to Joseph as the shooter, rather than Jones. This objection not only failed to preserve an objection to the use of the parties names in the hypothetical, it implicitly sanctioned such use. Appellants did not object that the hypotheticals should not have used the names of persons actually involved in the case and, as a result, forfeited that objection. (People v. Fierro (1991) 1 Cal.4th 173, 209 [hypothetical to jury panel]; People v. Gutierrez (1992) 10 Cal.App.4th 1729, 17341735 [hypothetical to expert]; Evid. Code, 353.) Even had this contention been preserved for appeal, we would reject it on the merits.

4. Propriety of hypothetical

A qualified expert can testify about criminal street gangs when the testimony is relevant to the case. (People v. Gonzalez (2006) 38 Cal.4th 932, 944.) Generally, a gang expert may render an opinion on the basis of facts given in a hypothetical question that asks the expert to assume their truth. (Id.at p. 946.)

Here, the prosecutors use in the hypotheticals of the names of appellants and others involved in this case did not mislead the jury or render the experts responses to the hypotheticals, opinions on the ultimate issues. Before asking each hypothetical, the prosecutor emphasized that he was going to pose a hypothetical to you. For each new fact added to the hypotheticals, the prosecutor repeated I want you to assume that . . . .  After the first experts testimony, the trial court instructed the jury as to what hypotheticals were, stating that a hypothetical question asks the witness to assume certain facts are true and to given an opinion based on the assumed facts. Its going to be up to you to decide whether an assumed fact has been proved. Finally, the jury was instructed in accordance with CALCRIM No. 332 that hypotheticals assume certain facts are true . . . .  It is up to you to decide whether an assumed fact has been proved. If you conclude that an assumed fact is not true, consider the effect of the experts reliance on that fact in evaluating the experts opinion. These statements and CALCRIM
No. 332 unequivocally informed the jury that the experts were opining on assumed facts and not testifying as to what the jury should conclude on the issues before it.

Instructive is People v. Phillips (1981) 122 Cal.App.3d 69. There, an expert doctor testified in response to a hypothetical which used the names of the defendants and the victims. The defendant claimed on appeal that the hypothetical question was phrased improperly because the names of the involved persons were used, leading the jury to believe the doctor was expressing an opinion about the defendants mental condition, when he had in fact never met her. (Id.at pp. 8283.) The Court of Appeal rejected the contention because the hypothetical could not have misled the jury, as it was clear that the doctor had never met the defendant, and the jury was instructed that it was to determine from all of the evidence whether or not the assumed facts in the hypothetical were proved. We similarly reject Josephs contention.

III. Self-representation or new counsel

A. Background

On January 14, 2008, the verdicts were read, and Joseph was removed from the courtroom for being disruptive. After the jury was released, the trial court set a sentencing hearing for February 6, 2008. At that hearing, Josephs attorney advised the trial court that Joseph wanted to represent himself for sentencing. Joseph indicated that he had complaints about his attorney. The trial court conducted a hybrid Marsden[13]and Faretta[14]hearing.[15]

At the hearing, Joseph told the court he wanted to go pro per. He stated that he never received any paperwork . . . to go over [his] trial, any transcripts and his attorney did not submit certain evidence at trial. He also raised a question regarding the possibility that a juror knew him, but remained on the jury though they tried to remove her. His attorney responded that the juror ultimately concluded that she was in error in thinking she knew Joseph. Joseph told the trial court that he had additional evidence of scientific testing of gloves which his attorney failed to introduce in evidence.

The trial court denied the Marsden motion, concluding that Josephs attorney had not rendered ineffective assistance. It stated that, after sentencing, an appointed appellate attorney would raise the issues that youre raising. For purposes of Marsden, there was no inappropriate representation.

As to self-representation, the court found that Joseph did not indicate what the basis would be and was concerned that the request was untimely. Joseph said that he was not ready to proceed if he were allowed to represent himself. Joseph then mentioned that his attorney had inadequate time to work on his case and failed to call some defense witnesses. Defense counsel acknowledged that some witnesses were not called and were not under subpoena. One particular witness, was supposed to testify about the condition of the Cadillac. That witness was not subpoenaed because he was cooperative and appeared once at trial, but did not return. Further, that witness was on felony probation, and counsel decided not to call him due to uncertainty of what he would say. The trial court denied the self-representation request because both sides had indicated that they are ready to proceed with probation and sentencing, and once sentencing was concluded Joseph would have new appellate counsel.

B. Contention

Joseph contends that the trial court erred and deprived him of his Sixth Amendment right to self-representation and/or to the appointment of new counsel. He argues that his request to represent himself was timely under the circumstances. The trial courts only justification for denial was that the parties were in court and ready to proceed with sentencing. It did not discuss disruption or delay that would be occasioned by allowing self-representation. He argues with respect to the Marsden motion that defense counsels responses to Josephs claims admitted ineffectiveness, such as by failing to place witnesses under subpoena.

C. Self-representation

A criminal defendant is entitled under the federal and state Constitutions to the assistance of counsel at all critical stages of the proceedings. (U.S. Const., 6th Amend.; Cal. Const., art. I, 15; Gideon v. Wainright (1963) 372 U.S. 335, 344345.) A right to self-representation is implied in the Sixth Amendment to the United States Constitution. (Faretta, supra, 422 U.S. at p. 819.) The right to counsel guarantees a defendant the assistance of counsel if the defendant wants it. It does not require a defendant to use an attorney. Accordingly, when a motion to proceed pro se is timely interposed, a trial court must permit a defendant to represent himself upon ascertaining that he has voluntarily and intelligently elected to do so, irrespective of how unwise such a choice might appear to be. (People v. Windham (1977) 19 Cal.3d 121, 128 (Windham).) The trial court is without discretion to deny such motion. (People v. White (1992) 9 Cal.App.4th 1062, 1071.)

But the right to self-representation is sharply curtailed once trial has begun. (See, Windham, supra, 19 Cal.3d at p. 124.) At that point, whether to permit self-representation is within the sound discretion of the trial court. (Id.at pp. 124, 128.) When such a midtrial request for self-representation is presented the trial court shall inquire sua sponte into the specific factors underlying the request thereby ensuring a meaningful record in the event that appellate review is later required. Among other factors to be considered by the court in assessing such requests made after the commencement of trial are the quality of counsels representation of the defendant, the defendants prior proclivity to substitute counsel, the reasons for the request, the length and stage of the proceedings, and the disruption or delay which might reasonably be expected to follow the granting of such a motion. (Id. at p. 128.) A disagreement over trial tactics is not a sufficient justification. (People v. Wilkins (1990) 225 Cal.App.3d 299, 309, fn. 4.)

1. The motion was untimely

Josephs motion for self-representation was not timely, being made after trial was concluded and on the day set for sentencing, after both sides indicated that they were ready to proceed. Motions to self-represent on the day of trial, or even a few days before, are untimely. (See, e.g., People v. Leonard (2000) 78 Cal.App.4th 776, 788789 [no error to deny motion made on first day of trial].) While a request for self-representation at sentencing is after trial, not during trial (People v. Miller (2007) 153 Cal.App.4th 1015, 1024), not every request for self-representation at sentencing is timely. (Ibid.) Much as a request to represent oneself at trial must be made a reasonable time before trial commences, the request for self-representation at sentencing must be made within a reasonable time prior to commencement of the sentencing hearing. (Ibid.)

Here, Josephs request was untimely. It was made at the time of the sentencing hearing, after the parties indicated they were ready to proceed. Joseph said he was not ready to proceed with sentencing, indicating that a continuance would be necessary. To the extent Joseph suggests that he would have made the motion at the time the verdicts were read but could not because he was removed from the courtroom, it was his own behavior which precluded the earlier request. The record fails to reflect any efforts to advise the trial court of his desire to represent himself in the three weeks after rendition of the verdict and before the day scheduled for sentencing.

2. The trial court did not abuse its discretion

The trial court did not abuse its discretion in denying Josephs belated request for self-representation. While the trial court focused on its untimeliness, the record does not affirmatively indicate that it failed to consider other pertinent factors. (People v. Myers (1999) 69 Cal.App.4th 305, 310 [trial court presumed to have considered all of the relevant factors in the absence of an affirmative record to the contrary].) The trial court need not state all of the underlying reasons for its denial of a request for self-representation. (Windham, supra, 19 Cal.3d at p. 129, fn. 6.) In any event, the record of the joint Faretta and Marsden motions adequately reveals the trial courts reasoning.

Joseph told the trial court he was not ready to proceed with sentencing, tipping the scale in favor of not granting self-representation. A continuance here would have caused a substantial delay and disruption of the court proceedings, as Joseph claimed that he had not received certain documents and transcripts and would have therefore required time to obtain and to prepare a motion for new trial. The trial court found that counsels representation was adequate and that Josephs differences with counsel regarding subpoenaing witnesses and producing evidence were mere disagreements as to tactics. Such decisions are not a basis for allowing self-representation. (Windham, supra, 19 Cal.3d at p. 128.) We therefore find no abuse of discretion in the trial courts denial of self-representation.

3. Harmless error

Even if the trial court erred in denying Josephs Faretta motion, any error was harmless in that it is not reasonably probable that had the motion been granted Joseph would have achieved a more favorable result. Unlike an error in denying a timely Faretta motion, which is reversible per se, the erroneous denial of an untimely Faretta motion is reviewed under the harmless error test of People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Rogers (1995) 37 Cal.App.4th 1053, 1058; People v. Nicholson (1994) 24 Cal.App.4th 584, 594595.)

The record fails to indicate incompetence or lack of preparation by defense counsel, and the trial court so found in connection with the Marsden motion. Given the limits of the trial courts discretion in sentencing, it is unlikely that Joseph would have obtained a more favorable sentence than his competent attorney received for him. The crime committed by Joseph was heinous.

D. Marsden motion

1. Marsden requirements

A defendant is entitled to . . . [substitute appointed counsel] if the record clearly shows that the first appointed attorney is not providing adequate representation [citation] or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result [citations].
(People v. Barnett (1998) 17 Cal.4th 1044, 1085; People v. Welch (1999) 20 Cal.4th 701, 728.) Denial of the motion is not an abuse of discretion unless the defendant has shown that a failure to replace the appointed attorney would substantially impair the defendants right to assistance of counsel. [Citations.] [Citation.] (People v. Valdez(2004) 32 Cal.4th 73, 95.) After the hearing, the decision whether to permit a defendant to discharge his appointed counsel and substitute another attorney during the trial is within the discretion of the trial court, and a defendant has no absolute right to more than one appointed attorney. (Marsden, supra, 2 Cal.3d at p. 123.)

In determining whether a trial court properly exercised its discretion in denying a Marsden motion, the reviewing court should consider all of the circumstances of the particular case (People v. Panah (2005) 35 Cal.4th 395, 426), including (1) the timeliness of the motion, (2) the adequacy of the courts inquiry into the defendants complaint, and (3) whether the conflict between the defendant and counsel was so great that it resulted in a total lack of communication preventing an adequate defense (People v. Smith (2003) 30 Cal.4th 581, 606607). The defendant bears a very heavy burden to prevail on [a Marsden] motion. (People v. Bills (1995) 38 Cal.App.4th 953, 961.)

Joseph failed to sustain his burden. The motion was untimely, being brought on the day of the sentencing hearing for which he said he was unprepared to proceed and would thus apparently require a continuance. Moreover, to have new counsel, who was not present at trial, prepare a motion for new trial, would be more difficult and time consuming. Joseph also failed to establish that his counsel inadequately performed. His criticism of counsel pertained primarily to her failure to call certain witnesses and present certain testimony. He claims that his attorney failed to show that the gloves which were found were tested, or to present additional witnesses and testimony, including the witness who was going to testify as to the condition of his car and evidence of a background check of Joseph. While the significance of much of this evidence is questionable, such decisions are tactical and not subject to a finding of ineffectiveness. (People v. Bolin (1998) 18 Cal.4th 297, 334.) For example, defense counsel failed to subpoena and call a witness to the mechanical problems of Josephs automobile. Counsel said that she did not subpoena the witness because the witness was cooperative. Subpoenaing a cooperative witness runs the risk of offending and thereby alienating the witness. Further, that witness was not called because he had a felony conviction, and counsel was uncertain exactly what the witness might say.

While the trial court emphasized in its oral ruling on the Marsden motion that the motion was untimely, there is no evidence that it failed to consider all of the Windhamfactors which were raised in the course of the hearing. The trial court is presumed to have considered all of the relevant factors in the absence of an affirmative record to the contrary. (People v. Myers, supra, 69 Cal.App.4th at p. 310.)

IV. Cumulative error

Jones contends that the errors cumulatively deprived him of due process and a right to a fair trial under the federal and state Constitutions. This contention is meritless. Lengthy criminal trials are rarely perfect, and this court will not reverse a judgment absent a clear showing of a miscarriage of justice. [Citations.] (People v. Hill (1998) 17 Cal.4th 800, 844.) Nevertheless, a series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error. (Ibid.) Because we have found no errors, there are no errors to cumulate.

V. Correction of abstract of judgment

Jones was convicted of attempted murder for the benefit of a criminal street gang. He was sentenced to life in prison with the possibility of parole for the attempted murder, plus a consecutive 25 years to life for the firearm enhancement under section 12022.53, subdivision (d) and a consecutive 15 years to life pursuant to section 186.22,
subdivision (b)(1)(C). The abstract of judgment lists an additional enhancement of 15 years to life pursuant to section 186.22, subdivision (b)(5).

Jones contends that the trial court erred by listing the 15-years-to-life minimum parole eligibility provision contained in section 186.22, subdivision (b)(5) as an additional enhancement. He argues that it is a minimum parole eligibility date, not an additional life sentence. When an indeterminate life term is imposed, then the 15-year minimum parole eligibility applies rather than a determinate, consecutive enhancement. Thus, Jones requests that the abstract of judgment be amended to strike the 15-year enhancement and to correctly state on page two that he is eligible for parole after
15 years.

Respondent agrees that the 15 years minimum parole eligibility under section 186.22, subdivision (b)(5) is not an enhancement. However, respondent argues that the minimum parole eligibility of 15 years does not merge into the 25 years to life Jones received for the firearm enhancement under section 12022.53, subdivision (d). We agree with respondent.

Section 186.22, subdivisions (a) and (b)(5) provide that a person who commits a felony punishable by imprisonment in the state prison for life for the benefit of, at the direction of or in association with a criminal street gang, shall not be paroled until a minimum of 15 calendar years have been served. This provision is not an enhancement, but sets forth the minimum amount of time a person sentenced to a life term must remain incarcerated before parole eligibility. (People v. Harper (2003) 109 Cal.4th 520, 525526.) When an indeterminate life term is imposed, then the 15-year minimum parole eligibility applies rather than a determinate, consecutive enhancement. (Id. at p. 525.) Nothing in Penal Code section 186.22, subdivision (b)(5) suggests this extended parole eligibility limitation period should be combined with an additional determinate term. (People v. Harper, supra, at p. 525, fn. omitted.)

Further, the 15-year minimum eligibility does not reduce the 25-years-to-life term for the firearm enhancement. It merely provides the minimum parole eligibility period for the life sentence on the underlying attempted murder charge. The 25-years-to-life firearm enhanc