P. v. Price

Filed 1/12/09 P. v. Price CA4/1

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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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, John L. Davidson, Judge. Affirmed in part, reversed in part, and remanded for resentencing.

After two jury trials, Brandon Lynell Price was found guilty of second degree murder (Pen. Code,[1]  187, subd. (a)), shooting at an occupied vehicle ( 246), attempted robbery ( 211, 664) and assault with a firearm ( 245, subd. (a)(2)). The jury also found true that Price had committed the murder and shooting at an occupied vehicle offenses for the benefit of a criminal street gang within the meaning of section 186.22, subdivision (b)(1) and that he was 16 years of age or older when he committed the offenses (Welf. & Inst. Code,  707, subd. (d)(1)). The jury specifically found not true allegations that Price had personally used or discharged a firearm causing death or great bodily injury during the commission of those offenses ( 12022.5, subd. (a)(1); 12022.53, subds. (b), (c), (d)).

As to the retried counts of attempted robbery and firearm assault, the jury found true the various personal use and discharge of a firearm allegations ( 12022.5, subd. (a)(1); 12022.53, subds. (c), (d)), but found not true the allegations that those crimes were committed for the benefit of a criminal street gang. The trial court sentenced Price to a total prison term of 28 years to life, which included the imposition of upper terms on the shooting at a vehicle, attempted robbery and firearm assault counts as well as the firearm enhancement to the assault.

Price appeals, contending his convictions for murder and shooting at a vehicle deny due process and must be reversed because they are not supported by sufficient evidence "once the uncorroborated accomplice testimony is set aside . . ." and because the jurors were given an illegal theory of conviction. He asserts his attempted robbery and firearm assault convictions should also be reversed as violative of his due process and fair trial rights because the testimony of his alleged accomplice Kevin Banks was coerced by the District Attorney's (DA's) control over the witness protection program, the trial court unreasonably restricted his right to cross-examine Banks in violation of his Sixth Amendment right to confrontation, and the prosecutor prejudicially vouched for Banks.[2] Finally, Price claims the imposition of an upper term for any of his crimes and enhancements violated his rights to a jury trial as recognized in Cunningham v. California (2007) 549 U.S. 270 (Cunningham).

We reverse Price's sentences for his attempted robbery and assault with a firearm convictions and his section 12022.5, subdivision (a)(1) enhancement attendant to the assault and remand the matter for resentencing in light of Cunningham error. In all other respects, the judgment is affirmed.

FACTUAL AND PROCEDURAL SUMMARY

On April 28, 2001, George Kassab, the owner and operator of Mr. D's, a liquor store on Market Street in San Diego, was shot in the shoulder by a masked Black man who ran out of the store after an apparent attempted robbery, jumped in a waiting getaway car and then sped off. A subsequent investigation revealed Banks had been the driver of the getaway car and Price was the suspected man who had entered the store to commit a robbery and had shot Kassab. Although Price was questioned about the incident on May 19, 2001, he was released without any charges.

On September 24, 2001, Price was arrested for questioning, and released shortly thereafter, about a freeway shooting at around 6:00 p.m. the day before, which occurred following a high speed chase involving alleged Lincoln Park (LP) gang members in one car, who fired shots at a car containing alleged rival Skyline Piru (Skyline) gang members, hitting 16-year old Anthony Newsome, who later died from a gunshot wound to his neck. The driver of the car from which the shots had been fired, Benjamin Oyeka, and two young men who were identified as being in the car, Ontarion Dodson and Jarius Bush, were also arrested and interviewed in connection with the freeway shooting.

During the subsequent lengthy investigation, a search warrant was executed at Price's home on October 30, 2002. Although police officers found no firearm or ammunition in his room, they found a bullet proof vest, numerous photographs of him and other LP gang members throwing gang signs, and a notebook containing gang-related drawings. When the officers told Price's mother they wanted to talk to Price who was not home, she called him and put a detective on the phone with him who told Price to return home so they could talk to him about Newsome's murder. When Price refused, District Attorney Investigator (DAI) Julio Barrios got on the phone and told Price the police wanted him to turn himself in. Price refused to return home or turn himself in. On May 9, 2003, Price was arrested in Tennessee based on a warrant for his arrest in connection with Newsome's murder and returned to California.

By the time of his return, Oyeka, Dodson and Bush had each entered into cooperating individual agreements with the DA's office with regard to the freeway shooting and Newsome's death, each having entered pleas of guilty to voluntary manslaughter. With regard to the incident at Mr. D's, Banks had pled guilty to attempted robbery and had served a stipulated two-year term at 85 percent before Price returned to California. Banks had also had several "free talks" with members of the DA's office and talks with DA investigators before testifying before the grand jury that issued the indictments against Price in this case. When Banks was paroled from prison in May 2004, he, along with his family, was put in the witness protection program.

Price's consolidated trial on all four charges and enhancement allegations arising out of the incident at Mr. D's and the freeway shooting commenced in May 2005. The jury returned guilty verdicts on the murder and shooting at a vehicle counts and their attendant enhancement allegations, but was unable to reach verdicts regarding the incident at Mr. D's. Retrial commenced in November 2005 solely on the Mr. D's charges and enhancements.

In our discussion below we separately set out the facts presented at each trial as pertinent to Price's contentions on appeal regarding the respective jury verdicts.

DISCUSSION

I

THE FIRST TRIAL:THE FREEWAY SHOOTING AND MURDER

Because Price's contentions of error involving the freeway shooting and murder concern only the evidence presented at the first trial, we set out those facts in considerable detail before addressing those issues. In doing so, we separately set forth the independent trial evidence from the accomplice testimony, which is crucial to our discussion of whether there is sufficient corroboration of the accomplice testimony under section 1111.

A. FACTUAL BACKGROUND

1. The Independent Trial Evidence

The Prosecution Case

To set the scene for testimony regarding the freeway shooting and for the alleged gang enhancements, San Diego Detective Bruce Pendleton, the prosecution's gang expert, testified about LP as a criminal street gang, identifying its primary crimes, which included murder, attempted murder, robbery, sales of narcotics, auto theft, witness intimidation, carjacking and vandalism. Pendleton noted that the LP gang had numerous subsets, including one called the "Murder Gang," and that members of such subset commonly committed drive-by shootings, several of which he had investigated and found to have been committed for the benefit of the gang. Pendleton stated that a gang member earned respect from fellow gang members by committing violent crimes.

Pendleton further testified about the rivalry between the LP gang and the Skyline gang, and described an incident he had investigated in which LP gang members went into Skyline gang territory and fired several shots at Skyline gang members. When the police responded to that incident, an LP gang member turned an AK47 on one of the officers. Several LP gang members were subsequently arrested for those crimes. Pendleton opined that he had investigated more LP shootings on Skyline gang members than the other way around.

Pendleton identified Price in court as a documented and tattooed LP gang member. He had contacted Price on May 19, 2001, in a car with Marcus House, another documented LP gang member, near the Bay Vista Apartments (Bay Vista). DAI Kenneth Freshwater also testified that he knew Price from previous investigations and knew him to be an LP gang member.

A Lemon Grove deputy sheriff then testified that on September 23, 2001 at around 6:14 p.m., he was called to a store's parking lot regarding a gunshot victim. When he arrived on the scene, he saw a young Black male, later identified as Anthony Newsome, lying on the ground behind a Nissan Altima sedan with a large gunshot wound behind his left ear, determined he had no pulse and then took responsibility to set up the crime scene for the start of an investigation.

Newsome, a football player at Morse High School, and his 13-year-old brother, S.H., had left their home in the Skyline area of San Diego the afternoon of the shooting with Laneich Duncan, a family friend, in her brown colored Altima to go to another friend's house. At that time, Newsome was in the front passenger seat and his brother S.H. was in the backseat. On the way there, Duncan, who was associated with an affiliate gang of Skyline, decided to drive into LP gang territory, to look for a girl named Mercedes whom she had seen the night before when Duncan had crashed a party given by Jarius Bush, a known LP gang member, at the Knox Glen apartment complex (Knox Glen) in San Diego. Apparently Newsome had been with Duncan in her car that night when people in front of Bush's party had yelled "Lincoln" and had thrown rocks at the Altima and another car driven by Skyline gang member Kevin Word.

As they were driving the day of the shooting, Duncan saw Word in his car and followed him to a gas station still in Skyline territory where they parked and talked with Bernard Benford, another Skyline gang member. Benford got into Word's car and they arranged to meet Duncan and Newsome at a nearby park after Benford went home to get his gun. However, on the way to the park, a Chevrolet Malibu driven by Benjamin Oyeka passed Duncan going in the opposite direction. When the Malibu made a U-turn, Duncan pulled her car over to the side of the street and Oyeka pulled up next to her, with his passenger side next to her driver's side. According to Duncan, words were then exchanged between Newsome and the passenger whom she did not know, with Newsome being asked, "What's up blood. Where you from?" She took these words as a challenge to fight by the passenger whom she observed had a name or some writing cut into his hair on the back of his head. When she told him they were not from anywhere, he called them punks.

As the Malibu drove away, Newsome told Duncan that he knew the passenger Ontarion Dodson from playing football, that he went by the name "Lil Dad," and that Lil Dad would not do anything. Duncan waited on the side of the road until she saw Word and Benford drive by. Because Word was having some car problems, he and Benford got into the back seat of Duncan's car and Newsome told them about what had just happened with the occupants of the Malibu. Duncan then began driving around. Within minutes they saw the Malibu make a U-turn at a stoplight and begin to follow them. Duncan panicked when she noticed there were now more people in the Malibu and started turning into side streets to try to lose the Malibu. At some point, she quickly pulled into a cul-de-sac so Newsome and Benford could switch places to enable Benford to be in the front seat in case he needed to use his gun. Newsome was now sitting behind Benford with Word sitting behind Duncan and S.H. sitting between Word and Newsome.

Although the people in the cars lost sight of each other for a while, the Malibu eventually began following Duncan again and a high speed chase ensued with Duncan ending up on the northbound 805 freeway. She estimated she was going 90 to 100 miles per hour as she weaved in and out of traffic with the Malibu following her. As her Altima approached the exit for the 94 east freeway, the Malibu pulled behind it and both cars got onto the off ramp for that freeway, which split into two lanes. As Duncan pulled into the right lane, the Malibu got into the left lane and pulled up alongside of her car. Several shots were then fired from the Malibu at Duncan's Altima.

Duncan exited the 94 freeway eastbound at College Avenue after discovering that Newsome had been hit. Before Duncan pulled into a parking lot and made calls to Newsome's mother and 911, Benford got out of the Altima and ran off. The others then took Newsome out of the car and laid him down, which was where he was found when responding police officers and paramedics arrived. Newsome died as a result of the bleeding from the gunshot wound to his neck.[3]

An examination of the Altima revealed that the rear driver side window had a hole through it and was shattered and there was a dent in the door below the window. A projectile was found between the panels of the door. The bullet recovered from Newsome's neck was subsequently determined to have been fired from a revolver.

San Diego Police Detective Patrick Lenhart testified about arresting Price on September 24, 2001 for questioning and then releasing him. Lenhart also told the jury about the execution of the search warrant at Price's home in October 2002, about the items found there and about talking with Price by telephone before handing the phone to DAI Barrios. Lenhart acknowledged on cross-examination that Price had told him the reason he would not return home at that time was because he and his family had been threatened.

A young man named Decoryius Jones, who knew Price, Oyeka and Dodson "Lil Dad," testified that on the late afternoon of September 23, 2001, he was outside his home in the driveway talking to a friend on the phone when he saw Oyeka and Dodson drive by, stop in the street and then make a U-turn and follow an Altima that had driven by. Although Jones believed there were either three or four people in Oyeka's car, he only recognized Oyeka and Dodson in the front seat and saw one person in the back, but could not recognize who that was. Jones got off the phone and got into a car with his friend to try to follow the other cars to see what was going on, but they lost sight of them. Jones also testified that sometime before the freeway shooting, some Skyline gang members tried to "start things" with Dodson during a football game between Morse High School, where Newsome attended, and Lincoln High School, and the police had to be called.

Bush's younger sister, Ashley, testified in the prosecution case that she did not see Price, Dodson or Oyeka on the day of the shooting. She stated she had been at a party at Kennedy Park that day but initially did not remember what time she had gone to or had left the party. She remembered seeing Bush there for a short time and that she left about an hour later than him after the party ended. When she walked home alone she saw her brother at the house and she did not leave her home again that night. Ashley was reluctant to testify and had received a text message on her cell phone that "scared" her from someone named Jamal before a preliminary hearing in this case that "they were going to kick my ass because I got on the stand and testified." Ashley had visited her brother at the DA's office in the presence of DAI Barrios in December 2004.

On cross-examination, Ashley testified that she had been at the party the day of the shooting from about 2:00 or 3:00 p.m. and that she had left at around 6:00 or 7:00 p.m.

DAI Barrios was called several times during the prosecution case to testify about his investigation regarding the shooting. He apprised the jury about talking with Price when the search warrant was served, and also about talking with him before he was released after being taken into custody right after the shooting. He additionally testified that Dodson, Bush and Oyeka had all said that Price was the shooter in the freeway killing.

Barrios also testified about his various talks with Ashley, first in August 2002, and then in December 2004. In 2002, Ashley told Barrios she had been at the party in the park from 2:30 p.m. until 6 p.m., that Bush had been there the whole time also, and that she had not seen Price or the others that day. When she came to the DA's office in 2004, Barrios talked with her again, going over her previous statements. She basically told him that her earlier statement was not the truth and explained that there was so much going on "on the streets, . . . too many people talking, and . . . she just wasn't looking for any more problems." She then told Barrios that Bush had not been at the party the whole time and that she had been with Mercedes and another girl when she saw Bush get in the Malibu with Oyeka and Dodson that day at the main gates or entrance to Knox Glen. When Barrios asked whether she had seen Price get into the car, she shrugged, crossed her arms, looked down and mumbled, "I don't know."

When Barrios talked with her a little later, Ashley told him about some text messages she had received, which she considered threats, calling her "a punk ass bitch" and saying "someone was going to fuck her up." She responded several more times that she did not know whether she had seen Price get in Oyeka's car. After Barrios interviewed another person and Ashley had spoken with Bush, Barrios again talked with Ashley that day. This time she said that she did see Price at Knox Glen that day and saw him get in the car with Oyeka, Dodson and Bush. She told Barrios she was now saying this because she did not want her brother to get in any more trouble; that "she wanted to do the right thing for [her brother]." She stuck by these statements even after Barrios told her that Bush had already pled guilty, had entered into a cooperation agreement and could not get into any more trouble.

On cross-examination, Barrios conceded that Bush had not yet been sentenced on his guilty plea at the time of the December 2004 talks with Ashley. Nor had Bush been sentenced yet at the time of Barrios's and Ashley's trial testimony on June 8, 2005. Barrios also acknowledged that he was aware that as of the December 2004 date, Bush had previously given conflicting statements to the police about his own and Price's involvement in the freeway shooting, essentially saying he did not know who was involved in the shooting.

Later in the prosecution case, during Bush's redirect testimony, the jury was played a widely circulated rap CD made by LP gang members called "Fuck Skyline," which included lyrics about guns, shootings, body bags, toe tags and other murder related topics against Skyline gang members.

Detective Pendleton also testified again regarding whether the freeway shooting was gang related. He opined that if an LP member is in a car with at least one other LP member, and that car chases a car filled with perceived Skyline gang members, and someone shoots from the LP car and kills someone in the Skyline car, then the crime benefits the LP gang by building up its name and showing it was not to be messed with. Pendleton further testified about several letters Price had written to other LP gang members while he was in jail pending trial, telling them that "they trying to really fuck me off over these lying ass niggas" and to "put clamps on that nigga's lips." Price also told other LP gang members in the letters that he thought it was funny that "those guys are testifying against [him]" and that it was not "ha-ha [funny], but 'that's bullshit.' " On cross-examination, Pendleton conceded that there was no bragging in the letters about any of the crimes for which Price was on trial and that he basically said he "didn't have nothing to do with that shit."

The Defense Case

Newsome's brother, S.H., who was a backseat passenger in the Altima at the time of the shooting, testified he had been riding in the car with Duncan and his brother earlier that day, when another car passed them and someone pointed at them. The other car then made a U-turn, pulled up next to the driver's side of their car, and the front passenger asked, "what's up" to Duncan and Newsome, which is a challenge to fight. When no one said anything, the other car drove off. Shortly thereafter Word and Benford joined them in Duncan's car because Word was having car trouble. As they continued driving around, the other car, which S.H. thought was a silver Altima, began chasing them. S.H.'s description of the ensuing chase tracked that of Duncan's, including the facts that Newsome and Benford changed positions in the car and the shooting occurred where the freeway "split apart" to go different directions on highway 94.

S.H. testified that he was able to see the other car shooting at them and that the shots came from the front passenger seat. When they discovered that Newsome had been hit, Duncan pulled off the freeway to get help. After Newsome died the next day at the hospital, S.H. went to a live lineup at juvenile court and provided additional statements to law enforcement. S.H. identified the person in position number five of the lineup as the shooter, and wrote on his card, "that's the guy who killed my brother." At that time all the people in the lineup had their hair cut. At the time of his initial statements, S.H. had told the investigating officers that the front seat passenger who had made the challenging statements and had shot at his brother with a small black handgun had something shaved in his hair, which he thought was the phrase "and 1."

At trial, S.H. identified a photograph of Dodson with his hair shaved to say "kind," as the front seat passenger who was the shooter. S.H. believed that the person was named "Jarvis" because his brother had said, "hey, that's Jarvis from Lincoln Park." S.H. also thought that someone named Lil Dad Dodson was sitting in the backseat of the suspect vehicle. Although S.H. appeared to be confused as to the names of the individuals he saw, he consistently identified Dodson in photos and the lineup as the front seat passenger who shot the gun at the Altima. He also described the front seat passenger as wearing big, shiny earrings, two cubic zirconia earrings in each ear.

During the investigation, S.H. had called DAI Barrios regarding an incident that occurred several months after the freeway shooting, telling him that while he was on his way to school with a friend, he was harassed by Price who was driving a Ford Expedition at that time. S.H. also told Barrios that Price was not the driver of the suspect car on the night of the freeway shooting.

A series of investigating officers additionally testified in the defense case regarding their interviews with S.H. about the shooting and the identity of the people involved. S.H. consistently told the officers that the front passenger with the writing in the hair, who he called "Jarvis," was the shooter and that he did not believe Price was the driver or in the car that night. S.H. told at least two officers that there was a girl in the back of the suspect car and that he could not identify the driver or one of the males in the back of the car.

One detective investigating the case testified about searches of Oyeka's home and car on October 3 and 4, 2001. The detective found a black nylon gun case and a green bandana during the search of the home. No items of evidence were found in Oyeka's car and none of the latent fingerprints taken from the car matched Price.

When DAI Barrios was called as a defense witness, he confirmed that Dodson had had engraved hair before it was cut off or shaved for a six-person live lineup, that Dodson was number five in the first live lineup shown S.H., and that S.H. had identified Dodson in that lineup as the shooter. When S.H. was shown a second live lineup, which included Price in the number four position, he did not pick anyone in that lineup as being involved in the freeway shooting. The second lineup was also shown to Duncan who picked out number two, a filler, as possibly being the driver of the suspect car, but she did not identify Price as being involved in the shooting.

On cross-examination, Barrios explained that Duncan had identified Dodson in the first lineup as the person in the suspect vehicle who had initially verbally confronted her, but she was not sure whether he was in the car at the time of the subsequent chase and shooting. Barrios was then permitted to testify on direct examination for the prosecution as to S.H.'s confusion in the interviews regarding the identity of the suspect car as an Altima rather than a Malibu, and regarding Price and the shooting. When Barrios asked S.H. on the telephone whether Price was involved in the shooting of his brother, S.H. said, "yes," explaining he had been hearing lots of things, with people talking to him and word on the streets. S.H. later called back and told Barrios that he was wrong and he was sure that "Jarvis" was the shooter. Barrios also noted that S.H. did not pick Oyeka out of a photo lineup he was shown as anyone involved with the suspect car. Barrios conceded that S.H. never said that Price was the shooter.

2. The Accomplice Testimony

Oyeka, Bush and Dodson each testified to his version of the facts tying Price to the freeway shooting of Newsome. Before doing so, each testified generally about knowing each other and Price through playing Pop Warner football or for Lincoln High School and about hanging out with LP gang members who were football players.

Oyeka, who had been 16 years old at the time of the freeway shooting, had the nickname "B.J.," and did not live in the LP area, testified he generally drove around in his Malibu with his close friend Dodson, who was known as "Lil Dad," had the words "young kind" shaved into his hair, and was younger than him.

The next day at around 12:00 or 1:00 in the afternoon Oyeka picked up Dodson and drove to Parkway Plaza Mall (the mall) to talk to some girls and do some shopping. There, they met up with Price, Bush and another man, and walked around for about 30 to 45 minutes before leaving to go to Kennedy Park. Dodson and Bush's older brother, who was an LP gang member, rode with Oyeka to the park where they mingled with a group of people there. After about 15 minutes, Bush, Dodson and Price left with Oyeka in his Malibu to go to Bush's cousin's house where some girls were supposed to be. While they were driving there, Bush called his cousin and learned that the girls were no longer there, so Oyeka just asked people where they wanted to go. He initially took Price to a friend's house, but then Price came back to the car and Oyeka dropped him and Bush off at the main gate of Knox Glen.

Then while Oyeka was driving Dodson to a place in Skyline territory, they passed a gold Altima driven by a female going the other way and Dodson said, "that's the car." When Oyeka noticed "a person . . . waving their hand out the window, like for us to come back[, he] turned around and went back to the car." Oyeka had seen the car parked outside at the party the night before. When Oyeka "rolled up" next to the Altima, which had stopped, he saw that there was a "guy," later identified as Newsome, in the passenger seat. Dodson, whose window was down, then exchanged words with Newsome, who according to Oyeka, said to Dodson, "you all bitch-ass nigga," called him another bitch, and then said "I want your fade," which means "a one-on-one fight." Dodson replied, "Whatever. You can have it." Oyeka then pulled away, telling Dodson he was going to go get Price and Bush to have extra people along in the car to be sure that "nobody jumped in" on the one-on-one fight. Oyeka had noticed the eyes of some people in the back seat of the Altima as the back window was rolled down "a crack," and assumed the people were males and that he and Dodson would be outnumbered if there were a fight at that time.

Oyeka then drove back to Knox Glen and picked up Price and Bush who were just walking out the main gate. Price sat behind Dodson and Bush behind Oyeka. As Oyeka started driving back toward where they had seen the Altima, he noticed Ashley, Mercedes and another girl off to the right hand side watching Price and Bush get into the car. Soon thereafter Dodson told Price and Bush about the Altima, how he knew the car from the night before and how Newsome wanted to fight him. Both Price and Bush seemed to react as if it were no big deal and they were there for back up. At that time Oyeka did not see anyone with a gun, and it was his intention just to find the Altima and let Dodson "handle his person problems. Well, fight [Newsome]."

As Oyeka was driving, he saw Jones, a football player he knew, in front of his house and stopped to ask him if he had seen a gold Altima. Before Jones could reply, the Altima drove by and Newsome waved his hand out the window again. Oyeka then turned to follow the Altima. At some point, he came up behind the Altima, which was still being driven by a girl, and began chasing it, first on surface streets at normal speeds and then faster when he followed the Altima onto the northbound freeway 805. After following the Altima for some time, and it did not appear to be stopping for a fight, Oyeka started to turn onto the highway 94 off ramp to go back home when the Altima cut over in front of him and "ended up on the 94 off ramp, too." Then as he got into the left lane of the off ramp, he glanced over and saw the Altima in the right lane slightly in front of him and the passenger with "a [chrome] gun out the top of the car," and Oyeka ducked. As he did so, "[Price] fired [three or four] shots to the gold Altima." Oyeka did not know of any shots being fired from the Altima.

Oyeka said he did not know Price had a gun until he saw him fire a black revolver with his arm extended out the window. Oyeka also saw Dodson duck down, but he could not see what Bush was doing. No one said anything after the shots were fired. Oyeka just continued to drive and later turned and asked, "what the fuck was that?" Nobody responded. Oyeka then drove in silence to Bay Vista and dropped Price, Bush and Dodson off before going home.

Oyeka did not call the police to report the shooting or tell his mother or anyone about it. Although he watched the news that night to see if anything were mentioned about a freeway shooting, nothing was. Oyeka did not know anyone had been shot until the next day when he went to school and was told the police wanted to talk with him and he should call his mother. He went home, called his mother, and subsequently retained an attorney and surrendered to the police. He initially refused to answer any questions by the police, even though he was aware that Dodson had already been arrested and had told the police what had happened. Oyeka finally told his version of the events at the time of his "707 hearing" at juvenile court to determine whether he would be tried for murder as an adult for being the driver of the Malibu. At that time, he denied he ever saw Price with the gun in the car.

Oyeka then explained briefly about having his case tried in juvenile court, having a "freetalk" with the DA's office, entering a cooperation agreement, and pleading guilty to voluntary manslaughter. In the agreement, Oyeka committed to testifying truthfully in court "to the best of [his] recollection." Oyeka understood that if he lied under oath he could be prosecuted for perjury, a new felony that would be a "strike" against him and send him to prison. Although the agreement did not provide a specific sentence for Oyeka's plea and testimony, he was incarcerated in juvenile hall for less than two years. At the time of trial, Oyeka had independently relocated outside of San Diego.

On cross-examination, Oyeka admitted he had testified at the juvenile court hearing that he had not seen Price shoot a gun from his car and that he was unsure whether Dodson had fired the shots. Oyeka also had told the DA's office that he never saw Price with a gun in the car and that Bush could have done the shooting. Oyeka conceded that he later learned that Dodson had told the police that Price was the shooter. The first time Oyeka said that Price was the shooter was in September 2002 after talking at the DA's office with a detective who pressed him on whether he had seen Price with the gun in the car. Oyeka testified he basically changed his mind to tell it like "it went down" because he felt he was "getting punished for somebody else['s] crime." Before that time, he testified falsely because he thought it was best for himself. Oyeka agreed that he did not get the manslaughter offer from the DA's office until after he said that Price was the shooter.

Bush, who had been an adult and LP gang member with the moniker "Tiny Sharp" at the time he was arrested on October 30, 2002 in connection with Newsome's murder, also testified as part of an agreement to cooperate he had entered into with the DA's office. Bush claimed the "Green Demons" clique of LP and stated that Price was in the "Murder Gang" clique. Bush explained that Bay Vista and Knox Glen were in LP territory and that Bay Vista was the social hub of LP where gang members usually met.

Before testifying about the specific events leading up to the freeway shooting, Bush provided general information about the rivalry between the LP and Skyline gang, discussed the CD called "Fuck Skyline" that had been put together by the murder gang clique, and talked about cruising Skyline territory trying to cause trouble between LP and Skyline. He agreed that some of the incidents involved guns and shootings, and that afterwards the gang members would brag about shooting people at Bay Vista to take credit and earn respect in the gang for "putting in work." Bush said that Price bragged to him sometime before he was locked up on this case about having participated in a shooting at a liquor store. Bush considered himself "a rider but not a shooter" in incidents involving Skyline.

Bush testified he was not aware of any altercation between LP and Skyline gang members at his September 22, 2001 party at Knox Glen or of any incident involving an Altima outside the party. The next afternoon, Bush went to the mall where he hung out with Oyeka, Dodson and others, but not Price. Bush later left the mall with several car loads of people to go to Kennedy Park, where LP gang members generally hung out, and where a big party was then taking place. Oyeka, Dodson and Price, among others, were with him at the party. Eventually, they decided to go to Bush's cousin's house in Oyeka's car to meet up with some other girls. When that fell through, Oyeka drove Price to a friend's house, but he returned to the car after talking with the friend and Oyeka drove Bush and Price to Knox Glen where they got out in front by the main gate. Although Bush and Price planned to just hang out and later go over to Bay Vista, Bush walked up to his house while Price stayed at the gate. After a short time, Bush walked back out to the main gate and saw Price talking with his sister Ashley, Mercedes, and two other girls. Just then, Oyeka and Dodson came speeding into the entrance in the Malibu. Bush estimated it was only about 15 minutes since Oyeka had dropped him and Price off at the main gate of Knox Glen.

Bush said he and Price hopped in the back seat "because [he] heard . . . Dodson telling . . . Price that he wanted us to come with him so that he could get his back while he catched a fade with some rival gang member from Skyline." Dodson explained that they had just seen the people who had challenged him to a fight and they had gotten into a shouting match and "banging on each other," throwing gang signs. Although he was "pumped up," Bush "was just keeping calm."

Bush then described the Malibu coming up behind the Altima at a stoplight and Oyeka following it through back streets in the area. At some point Bush saw the front passenger and the back right passenger switch seats. He also confirmed seeing Jones, and Jones starting to follow their car as they looked for the Altima. Bush said the people in the Malibu were "kind of anxious like [and a] few people might have said, 'let's get them.' " He denied having a gun with him, ever knowing that Dodson or Oyeka carried a gun, and did not know whether Price had a gun with him in the car.

Bush testified that when they eventually saw the Altima again, a chase began that led them onto the 805 freeway northbound. The freeway chase did not last long, with Oyeka's Malibu shortly coming up on the highway 94 off ramp, which split to either go toward downtown or to Fairmont. As Oyeka's car continued straight on the left side off ramp, the Altima veered to the right and around the corner onto the other off ramp lane to go the other direction on highway 94. At that point, Bush saw "a [chrome handgun] come out of the roof of the other car, and [he] ducked [to the left and closed his eyes]." The cars were almost parallel, with the Altima a little bit in front. Bush then heard four or five shots ring out from the back seat of the Altima. When he opened his eyes, he saw Price with "the gun[, a revolver,] on his lap." He also noticed the window was now down and then saw Price put the gun in his waist so it was covered by his clothing.

Other than Oyeka turning around and saying "what the fuck was that," no one said a word as Oyeka drove back to Bay Vista and dropped them off. Bush immediately walked alone to Knox Glen and had no conversation with the others. After he found out about Newsome's death, and the arrests of Oyeka, Dodson, and Price in the days following the shooting, Bush hid out at a cousin's home until the police, accompanied by Detective Pendleton, found him there almost a week and a half later. Bush had known Pendleton from over 20 field contacts regarding LP gang matters.

When interviewed about his involvement in the shooting, Bush lied to the police and detectives, denying he had done anything because he was scared, did not want to be a "snitch," and did not want "nothing to happen to my family." Bush was then released from custody until his October 30, 2002 arrest and the charges in this case were filed against him. Eventually Bush had a "free talk" at the DA's office on April 29, 2003. Knowing he was facing charges as an adult and that both Oyeka and Dodson had already entered cooperation agreements and were set to testify against him at his preliminary hearing originally scheduled for that day, Bush gave a full statement about his actual involvement in the freeway shooting. After a second free talk with the DA's office in May 2003, Bush was offered a plea to voluntary manslaughter with a six-year prison term in return for entering into an agreement to cooperate and "tell the truth on the Anthony Newsome murder."

Bush testified that he had begun experiencing threats to himself and his family after he agreed to cooperate. After telling DAI Barrios about his fear from the threats, Bush was put into segregation in the county jail.

On cross-examination, Bush conceded he had previously been involved in LP gang shootings and beatings of other people, but had never been prosecuted for those crimes. He also acknowledged that even though he hung out with Price, he was not close with him, and was closer friends with Oyeka and Dodson at the time of the shooting. Bush did not believe that the incident between the Malibu and the Altima was a gang thing, but thought it was only a personal matter between Dodson and Newsome. At the time of his free talks, Bush had expressed not wanting to spend the rest of his life in prison and knew that Dodson had already named Price as the shooter in the incident. Bush additionally conceded that he had asked his sister Ashley to lie for him before he was charged in this case.

On redirect, Bush extensively explained the meaning of the words on the CD that was played for the jury. He also explained that he only told his sister to say that he was at the party at the park "the whole time," which would have provided him with an alibi and that during the visit with DAI Barrios, he told her she need not lie anymore about seeing him get into the car or about Price getting into the car.

Dodson, who was 15 years old at the time of the freeway shooting, testified, like Oyeka and Bush, pursuant to an agreement of cooperation entered into with the DA's office. Before pleading guilty to voluntary manslaughter, Dodson had spent some time in custody in juvenile hall and from the time he was released until the time of trial had been living outside of San Diego County. Although Dodson had family members who were LP gang members, he denied he was one. Before turning to the events leading to the freeway shooting, Dodson explained the location of Bay Vista, Kennedy Park and Knox Glen, which were generally across the street and about a minute or two walk away from each other, and their relationship to LP.

On September 22, 2001, as he was leaving Bush's party at Knox Glen, Dodson saw a golden colored Altima and a Honda "CRX" drive slowly by "talking trash." He heard both angry male and female voices yelling things out the windows of the cars before he went home. He denied there was any incident involving rocks being thrown that night.

Dodson then testified similarly to Oyeka and Bush about going to the mall the next afternoon and then to Kennedy Park for a party, where they saw Price. Dodson left the party with Oyeka after less than an hour to "go hang out with [Bush] and his girl cousins and her friend." The plans, however, fell through. They then went someplace and stopped because Price wanted to go there. At some point they all left in Oyeka's car and drove to Knox Glen where Bush and Price got out. Then, as Oyeka was driving Dodson to a barbecue in the Skyline area, Dodson saw the same Altima and CRX driving by as he had seen the night before and someone waving at him from the Altima.

As Oyeka had already mentioned, he made a U-turn and pulled up to the side of the Altima. Bush then noticed that a girl was driving the Altima. Newsome, whom he knew from football and a previous confrontation, was the front passenger, and a "guy" was in the back. According to Dodson, the girl started "talking 'mess,' " meaning "trash talking, foul mouth," even though neither he nor Oyeka said anything. When she said she was either from Skyline or O'Farrell, Newsome just nodded his head and said, "Oh, this is Lil Dad." The encounter ended with "fighting or something," with someone mentioning "catch that fade." Oyeka then drove off, telling Dodson he was going to get Bush and Price, "just in case you fight, you won't get jumped."

Dodson's version of events then tracked that of Oyeka and Bush about Price and Bush getting into the Malibu at Knox Glen, about seeing Ashley, Mercedes and another girl standing by the gate, about telling Price and Bush about what had happened with the Altima as they started driving back into Skyline territory, about seeing Jones and some other people who followed them when they began following the Altima again, about people in the Altima switching seats, and about leaving surface streets and chasing the Altima onto the freeway as it weaved in and out of traffic. When the cars got to the 94 freeway and Oyeka's car pulled up behind the Altima in the left lane, it got into the far right lane, and "as we hit the junction, [with the Altima further ahead of the Malibu,] the other car pulled out a gun out the [front passenger] window [and Dodson] ducked down."

Dodson could not remember hearing shots from the Altima, but heard shots fired from behind him in the Malibu. He did not lift his head up until after the Malibu was off the 94 freeway ramp. Dodson never saw the gun in the car and did not hear anyone say anything after the shots. When Oyeka got to Bay Vista, everyone got out and Dodson ran home nervous and scared. He learned that someone in the Altima had been hit before he went to school the next day. He was arrested later that day and his mother was with him when he was interviewed by police about the freeway shooting.

At the time of trial, Dodson could not remember what he told the police at his interview but conceded he had not told the truth because his mother was there and he was scared. Afterwards, he was charged with murder in juvenile court and held in custody there. He subsequently had a free talk with the DA's office and entered the cooperation agreement to tell the truth in exchange for his plea and probation. He got out of custody on May 29, 2003. Because he thought Price was "a cool guy" who had always been nice to him, he then tried to contact Price's attorney to see if there was anything he could do to help, but he would not lie for him.

On cross-examination, Dodson was shown transcripts of his two interviews with the police on September 24, 2001, where he had told them that he had been in a three-way telephone conversation with Bush and Oyeka right after the shooting, and also that he had heard some shots coming from the Altima. Although he initially did not recall saying those things, he later said it may have been possible that he had heard some shots coming from the other car. He conceded that Bush and Oyeka were his closest friends during the summer of 2001.

Dodson also admitted that when he was first questioned, he was informed that someone in the Altima had identified him as the shooter in the incident. He did not remember telling the police at that time that Newsome was his friend and that he had not had words the day of the shooting. Dodson had later told investigators at the DA's free talk that there had been a confrontation between him and Oyeka and the people in the Altima the night of Bush's party and that it was the same Altima involved in the freeway shooting the next day. Dodson agreed that when he was charged with murder in this case he was concerned about the effect it would have on his ability to play football as a career.

DAI Barrios testified again to present additional statements that Dodson had made during his free talk on August 13, 2002, regarding the freeway shooting. Dodson had stated that right before hearing gunshots, he had heard the window behind him roll down and the sound of "rushing air or something to that effect." He then heard Price say to himself in a very low voice, "something to the effect of 'I think I hit somebody' or 'I think I shot somebody' or 'I think I hit him' or something . . . really similar to that." Right after that, Dodson heard Price say "something to the effect of 'I should have shot . . . the bitch' or 'I should have shot the girl.' " Dodson also told Barrios at the free talk that Price asked him to take the gun or hide it once they were dropped off at Bay Vista.

On cross-examination, Barrios acknowledged that Dodson was advised at the free talk that the DA's office was not pursuing charges against him on the theory that he was the shooter. The same advisement was also given to Oyeka during his free talk the next day.

With regard to the accomplice testimony, during closing argument the prosecutor stressed that although Oyeka, Dodson and Bush were "legally culpable and legally guilty of murder, . . . we sometimes have to use getaway drivers to identify the actual perpetrators. We sometimes have to use aiders and abettors, lookouts or other people to get the actual person who pulled the trigger. That's what happened in this case." The prosecutor told the jury that even if they did not like Bush, Dodson or Oyeka, "if you believe them when they told you that Brandon Price did the shooting and not Ontarion Dodson, then the defendant is guilty of murder. [] And, once again, you can believe one of them and dismiss and take out the others' testimony and still come to that same conclusion. That's why you have all of the law and instructions on [accomplices]." The prosecutor argued that the accomplices' testimony, together with the gang evidence, especially the CD and testimony regarding Price's membership in the LP "murder gang," and Price's flight out-of-state and his letters sent to other gang members from jail, were sufficient proof he was the shooter on the day of the freeway killing.

Although the jurors returned verdicts finding Price guilty of Newsome's murder and shooting into a vehicle and that the crimes were committed for the benefit of a criminal street gang, they did not find that Price was the shooter.

B. CONTENTIONS

1. Sufficiency of the Evidence

Price contends there was insufficient evidence to sustain his convictions for murder and shooting at an occupied vehicle because they were based on the uncorroborated accomplice testimony of Oyeka, Bush, and Dodson, which is insufficient under section 1111 for conviction. He specifically argues that although there may be independent corroborating evidence that establishes the commission of those crimes, there was no such evidence presented tying or connecting him to the commission of those crimes. We disagree.

It is uncontested that Oyeka, Bush and Dodson were accomplices as a matter of law because they were "liable to prosecution for the identical [murder and shooting at a vehicle] offense[s] charged against the defendant [Price] on trial in the cause in which [their] testimony [was] given" ( 1111), and the trial court properly instructed the jury that they were accomplices. (See People v. Zapien (1993) 4 Cal.4th 929, 981; CALJIC No. 3.16.) A conviction "can not be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof." ( 1111.) "The testimony of one accomplice[, however,] may not be used to corroborate the testimony of another accomplice. [Citations.]" (Peoplev.Rios (1985) 163 Cal.App.3d 852, 870; see also People v. Rodrigues (1994) 8 Cal.4th 1060, 1132.) In other words, the "[c]orroborative evidence must come in by means of the testimony of a nonaccomplice witness. [Citation.]" (People v. Fauber (1992) 2 Cal.4th 792, 834.) For this purpose, the term "testimony" applies to both in court and out of court statements when used as substantive evidence of guilt. (People v. Andrews (1989) 49 Cal.3d 200, 214.)

In Peoplev.Bunyard (1988) 45 Cal.3d 1189, our Supreme Court set forth the standard for reviewing the sufficiency of corroborating evidence:

" 'To corroborate the testimony of an accomplice, the prosecution must produce independent evidence which, without aid or assistance from the testimony of the accomplice, tends to connect the defendant with the crime charged. [Citation.] "The evidence need not corroborate the accomplice as to every fact to which he testifies but is sufficient if it does not require interpretation and direction from the testimony of the accomplice yet tends to connect the defendant with the commission of the offense in such a way as reasonably may satisfy a jury that the accomplice is telling the truth; it must tend to implicate the defendant and therefore must relate to some act or fact which is an element of the crime but it is not necessary that the corroborative evidence be sufficient in itself to establish every element of the offense charged." [Citations.] . . . "[T]he corroborative evidence may be slight and entitled to little consideration when standing alone." [Citations.]' [Citation.]" (Id. at p. 1206.)

To determine whether sufficient corroboration exists, the accomplice's testimony must generally be disregarded and the evidence of other witnesses examined to determine if there is any inculpatory evidence tending to connect the defendant with the commission of the offense. (People v. Shaw (1941) 17 Cal.2d 778, 803; People v. Falconer (1988) 201 Cal.App.3d 1540, 1543 (Falconer).) As the court in People v. Knight (1980) 111 Cal.App.3d 201 noted, "[c]orroborating evidence is sufficient if it substantiates enough of the accomplice's testimony to establish his [or her] credibility [citation]." (Id. at pp. 205-206.) Although corroboration may also be shown by circumstantial evidence and consist of evidence of a defendant's conduct or his declarations (People v. Douglas (1990) 50 Cal.3d 468, 506-507), such evidence must do more than raise a conjecture or suspicion of guilt--it must in some degree implicate the defendant in the commission of the crimes charged. (Peoplev.Szeto (1981) 29 Cal.3d 20, 27 (Szeto).) "[U]nless [we] determine[] that the corroborating evidence should not have been admitted or that it could not reasonably tend to connect a defendant with the commission of a crime, the finding of the trier of fact on the issue of corroboration may not be disturbed on appeal." (Ibid.)

After searching the record[4] in light of the above rules, we find there was slight corroborating evidence, which is sufficient to connect Price to the freeway shooting and murder of Newsome. Although there was no physical evidence implicating or connecting Price to the commission of the freeway crimes, and we do not believe that the bulletproof vest found in a search of Price's home more than a year after the shooting or the fact that a revolver was used to kill Newsome provide any link to tie Price to those crimes, there was independent corroborating evidence in Ashley's prior out-of-court statements made to DAI Barrios in December 2004 from which a reasonable jury could have inferred that Price was in Oyeka's car at the time of the crimes.

We recognize that none of the people riding in Duncan's Altima at the time of the shooting identified Price as an occupant of Oyeka's Malibu[5] and that the independent witness Jones, who saw the Malibu while it was driving around could only identify Oyeka and Dodson as being in the car when it started chasing after the Altima. Jones stated he could not see who the people in the back seat of the Malibu were or determine whether there was more than one person in the back. We believe, however, that Ashley's prior out of court inconsistent statement that she had seen Price get in Oyeka's car with Oyeka, Dodson and Bush at the front gate of the Knox Glen apartments on the day of the shooting provides adequate corroboration for the accomplices' testimony identifying Price as the fourth occupant of Oyeka's car at the time of the freeway shooting.[6] Although Ashley's prior statements did not contain a specific time factor, a jury could reasonably infer from them and her and Barrios's trial testimony that she saw Price getting into Oyeka's car with her brother near the time of the chase and the shooting. In her trial testimony, Ashley said she was unsure of the exact times, but thought she had been at the Kennedy Park party from 2 or 3 p.m. until around 6 or 7 p.m. She had told Barrios during a 2002 interview that she had left the party at around 6 p.m. Because the freeway shooting and murder occurred around 6 p.m. on that same day, Ashley's prior inconsistent statements were sufficient to connect Price, not only with the accomplices, but also with the crimes committed from Oyeka's car.

Moreover, the fact that there was evidence[7] that arguably could show that Price had many opportunities to get in and out of the Malibu that day and might not have been in the car at the time of the shooting does not change our analysis. The effect of that evidence was essentially a matter for the jury to decide. The jury was entitled to weigh the evidence and credibility of the witnesses regarding such matter. We do not reweigh the evidence.

In addition, although susceptible to different interpretations, the jury could also infer from Price's refusal to return home to talk with a police detective or to surrender to DAI Barrios in telephone calls in 2002 and in leaving the state, that Price had a guilty frame of mind regarding the shooting and murder of Newsome. This evidence coupled with Ashley's statements placing Price in the car from which the fatal shot was fired near the time of the murder, tends to support the accomplice testimony that Price was the fourth person present in the car and participated in the murder.

Further, although not alone sufficient to provide independent corroboration tending to connect Price with the commission of the freeway shooting, the extensive gang evidence, which showed that Price was a documented LP member, that Newsome was associated with the