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Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. DAMONE LESHON HICKS, Defendant and Appellant.


Decided: February 18, 2010

Thomas T. Ono, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Roberta L. Davis and J. Michael Lehmann, Deputy Attorneys General, for Plaintiff and Respondent.


A jury convicted Damone Leshon Hicks (defendant) of one count of murder (Pen.Code, § 187, subd. (a)) 1 (count 1), three counts of premeditated attempted murder (§§ 187, subd. (a), 664) (counts 2, 3, & 4), and being a felon in possession of a firearm (§ 12021, subd. (a)(1)) (count 5).   With respect to all counts, the jury found that defendant committed the crimes for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)).   The trial court found that defendant had suffered a prior conviction of a serious or violent felony (§§ 667, subd. (a), subds. (b)-(i);  1170.12, subds. (a)-(d)).  With respect to counts 1 through 4, the jury found that a principal personally and intentionally discharged a firearm causing great bodily injury or death (§ 12022.53, subds.(d), (e)(1)).2

The trial court sentenced defendant to a total term of 192 years to life.   In count 1, the trial court imposed 25 years to life, doubled to 50 years under the “Three Strikes” law, for the murder, with an additional 25 years pursuant to section 12022.53, subdivisions (d) and (e)(1), for a sentence of 75 years to life in that count.   In each of counts 2, 3, and 4, the trial court imposed seven years to life, doubled under the Three Strikes law to 14 years to life, for the attempted murders, with an additional term of 25 years to life pursuant to section 12022.53, subdivisions (d) and (e)(1), for consecutive sentences of 39 years to life in those counts.   In count 5, the trial court imposed and stayed under section 654 a high term of three years, doubled to six years under the Three Strikes law, with an additional high term of four years pursuant to section 186.22, subdivision (b)(1).

Defendant appeals on the grounds that:  (1) the trial court's erroneous limitation of cross-examination and exclusion of third party culpability evidence violated his constitutional rights of confrontation, to due process of law, and to a jury trial;  (2) the trial court breached its duty to answer the second jury query and violated his constitutional rights to due process and trial by jury;  (3) section 654 bars imposition of multiple section 12022.53, subdivision (d) enhancements imposed pursuant to findings under sections 12022.53, subdivision (e) and section 186.22;  and (4) the lack of substantial evidence supporting the verdict in count 5 and the related criminal street gang enhancement compels a reversal of the judgment in that count.


Prosecution Evidence

Defendant is a member of the 40 Pirus criminal street gang with the moniker of “Digum.”   Defendant wears tattoos that say “Piru” and “Eastside Pirus.”   He is an older gang member, or “OG,” who commands the respect of younger gang members.   He is also a shot caller, which means he can tell other gang members to commit crimes.   The 40 Pirus gang is a Los Angeles Blood gang that was formed in the early 1980's and whose primary activities include murder, attempted murder, assault with a deadly weapon, robbery, narcotics transactions, vandalism, and firearms possession and sales.   The 40 Pirus share their territory with another Blood gang called All For Crime (AFC), and the two gangs commit crimes together.   Their enemies are Crips gangs, such as the Broadway Gangster Crips.   The territory of the latter gang includes the corner of Slauson Avenue and San Pedro Street in Los Angeles, where the shootings in this case occurred.

On May 23, 2006, a group of people who lived and worked at the People-to-People Homeless Shelter were standing at a bus stop on the corner of Slauson Avenue and San Pedro Street.   The group included Charles Hyde (Hyde), Rachel Koles (Koles), Curtis McKinney (McKinney), Jessica Ortega (Ortega), Errol Smith (Smith), Don Mitchell (Mitchell), and Amanda Turner (Turner).   Turner stood facing Slauson Avenue and conversing with Koles and McKinney, whose back was to the street.   A metallic grey Nissan Maxima with tinted windows and a partially open passenger window drove up in the lane closest to the curb.   A gun appeared at the partially open window, and a second gun was thrust through the sun roof.   As the Maxima passed the group, the shooters opened fire.

Hyde was hit eight times and died on the spot.   McKinney turned around, saw the car, and ran down Slauson Avenue.   A bullet hit him under his right knee cap, permanently severing a nerve and rendering him unable to work.   McKinney lay on the pavement and watched the Maxima drive down Slauson Avenue and turn right on San Pedro Street.   Koles saw a flash of light and was lifted off the ground when a bullet hit her leg.   The bullet went through her leg, and Koles suffered a broken tibia from the knee down.   She received a permanent injury and requires ongoing physical therapy.   Ortega, who had also been standing with her back to the street, fell to the ground.   Her leg felt numb, and she was bleeding from her stomach and back side.   Ortega spent a month in the hospital and was walking with a cane at the time of trial.

On May 27, 2006, four days after the shooting, Officer Thomas Sherwood (Sherwood) of the Los Angeles Police Department (LAPD) stopped a grey 1989 Maxima with an expired registration tag.   Defendant was driving, and two Piru Bloods were passengers.   Defendant was cited for driving with a suspended license, and the car was impounded.   Sherwood saw a nine-millimeter spent shell casing on the front passenger side floorboard.   He noted this on the vehicle report but left the casing in the car.

Celeste Bailey (Bailey) owned the Maxima, and she was in a romantic relationship with defendant in May 2006.   She sometimes allowed defendant to use her car.   Bailey remembered being in a residence at 1607 East 41st Place with defendant when two of the men with him had guns.   She testified that defendant was not one of them, and she could not remember if she had previously told a detective that she saw defendant playing with a gun, loading and unloading it.   On that occasion, Bailey allowed defendant to use the Maxima.   He left with the two men at approximately 8:30 p.m. When defendant returned the car, the shield to the car's sunroof was cracked and the sunroof itself had dents and scratches.   There was a hole in one of the passenger seats.   When Bailey later retrieved her car from the impound yard, she saw a gold bullet or shell casing when it rolled to the front of the car.   Bailey threw it out the window.

During the summer of 2006, Bailey chose defendant's photograph from a photographic lineup as the man who borrowed her car, and she wrote, “I saw him playing with gun.”   She identified Hare as one of the men who accompanied defendant on that occasion, writing that she thought he went with Digum.   At trial, Bailey testified that she identified Hare because she felt pressured by police.   She could not say at trial whether Hare was one of the two men who went with defendant.   Bailey was afraid when interviewed by police officers because they told her she would go to jail.

Detective Johnny Villa (Villa) of the LAPD was one of the officers investigating the shooting.   He interviewed Christopher Jones (Jones) on June 2, 2006, at a juvenile facility.   Jones said he was a member of the 40 Pirus and named defendant and Hare as the shooters.   Jones said that defendant was a 40 Piru and Hare was a member of AFC. Jones described the vehicle and the weapons used to commit the crimes.

According to Jones, defendant and some friends were gambling at an apartment complex on East Vernon Avenue on the day of the shooting, and a group of Broadway Gangster Crips drove by and shot at them.   The complex is a known Bloods hangout.   Defendant ordered Jones and the others to collect the spent casings.   At approximately 6:00 or 7:00 p.m. that day, Jones was with defendant at 1607 East 41st Place, a residence defendant often frequented.   It is located about five miles from the shooting scene.   Jones saw defendant and Hare loading an Intratec 9 semi-automatic pistol (TEC-9) and a chrome .38-caliber pistol.   Defendant said they were going to “bust on” somebody.   The two men left in a light colored Maxima belonging to defendant's girlfriend at around 8:00 p.m. and returned at around 8:30 or 9:00 p.m. Defendant said, “We got him” when he returned.   Hare said they had shot at a group of “niggas” who had been standing at a bus stop and who had flashed gang signs.   He said there were two or three women in the group.

Jones said that defendant's girlfriend, whom he called “Sugar Boo” gave him a ride home that night.   As they passed the corner of Slauson Avenue and San Pedro Street, Jones saw police tape.   He thought, “Wow, they really did do that.”   Jones saw television coverage of the shooting when he got home.

Villa told Jones to review Villa's notes of the interview.   He then told Jones to initial each page, and Jones did so.   At one point Jones said that defendant and Hare hid their guns in a Suburban that was parked at the back of the residence on East 41st Place.   Defendant often used the Suburban to store firearms and narcotics.

Four days after Jones's initial interview, Villa interviewed Jones again along with Detective Miguel Terrazas (Terrazas).   This interview was recorded, and the recording was played for the jury.   Jones confirmed his previous statements.   He also said the defendant was loading the TEC-9 with large nine-millimeter bullets.   Jones selected photographs of defendant and Hare from a six-pack.

When police tried to serve Jones with a subpoena to testify at defendant's trial, he hid in the bathtub and then ran out of the house in his underwear.   At trial, Jones denied being interviewed by police and claimed it was not his voice on the recording.   He denied receiving a deal in return for his cooperation.   He denied identifying defendant and initialing the six-pack in which defendant's photograph was circled.   Jones denied his own membership in the Piru Bloods.   He said he did not know and had never seen defendant or Hare, and he had no knowledge of the crimes, not even from a news source.

At the time of trial, Jones was in custody for attempted carjacking and had been in custody since December 2007.   Jones had suffered prior juvenile adjudications and was arrested for violating the terms of his placement.   He testified that he was aware he was facing a term of 13 years when he was arrested.   He was sentenced to nine months.

In June 2006, victim Turner identified a picture of Bailey's Maxima as the car from which the shots had been fired.   Victim McKinney also identified the Maxima as the car involved in the shooting.   McKinney remembered the tinted windows and a distinctive thin gold strip on the side of the doors.   McKinney also identified the Maxima at trial.

On June 15, 2006, police executed a search warrant at the residence on East 41st Place.   Officers found a Suburban parked at the rear, just as Jones had stated.   The police impounded the Suburban.   A subsequent search of the vehicle yielded firearms, ammunition, and narcotics.   Officers found two TEC-9s, one of which was loaded with nine-millimeter bullets.   Some of the TEC-9 rounds were Lugers.   There were magazines for other guns.   The Suburban contained approximately 200 rounds of ammunition, including .22-caliber, .45-caliber, and nine-millimeter rounds.   The narcotics consisted of rock cocaine, methamphetamine, and marijuana.

Police recovered shell casings and other items of evidence from the crime scene, and the coroner recovered three bullets from the murder victim, Hyde. The bullets were consistent with having been fired from a nine-millimeter gun.   They could also have been fired from a .38-caliber gun.   One of the bullets removed from the murder victim and one of the cartridges found at the scene were nine-millimeter bullets fired from one of the TEC-9s (exhibit 30) found in defendant's Suburban.   Defendant was not the registered owner of the Suburban but was listed as the buyer of the vehicle.

Five of the cartridge cases found at the crime scene were fired from the same gun, a nine-millimeter that may have been a Glock.   This latter gun was not, however, the one depicted in exhibit 30.   Four of the other bullets found at the crime scene were not fired from the gun in exhibit 30.   The ballistics expert could not determine if these cartridges all came from the same gun.   These cartridges were consistent with nine-millimeter, .38-caliber, and .357-caliber weapons.

Officer Ruben Garcia testified that he was of the opinion that defendant committed the shootings for the benefit of his criminal street gang after a group of 40 Piru gang members were fired upon by a rival gang.   Defendant indicated the gang would take care of its retaliation when he ordered his fellow members to pick up the casings from the drive-by.   This action meant that police responding to a shots-fired call would not be able to confirm that shots had actually been fired.   The subsequent shooting at the bus stop was in the Broadway Crips gang's territory.   The shooters targeted Blacks, which is the race of most Broadway Crips members.   The statement “We got him” confirmed the fact that the shooting was carried out to further the gang's interest.   Crimes such as these shootings elevate the gang's stature and send a message to rival gangs.   It allows the gang to commit more crimes by instilling fear in the community and ensuring that community members do not report gang crimes.   The crimes also elevate the status within the gang of those individuals who committed the act.

Defense Evidence

Defendant presented no evidence on his behalf.


I. Limitation of Cross-Examination and Third Party Culpability Evidence

A. Defendant's Argument

Defendant contends the trial court committed reversible error in limiting cross-examination of Terrazas on the critical issue of third party culpability.   Terrazas was the only available witness on this defense, since Ortega recanted at trial her previous statement that she believed her ex-boyfriend Jeffrey Clark (Clark) was the shooter.

B. Proceedings Below

Ortega's cross-examination by defendant's attorney began with the question, “Can you tell the court who Jeffrey Clark is?”   Ortega replied that Clark was her ex-boyfriend, and they had been together four years before breaking up a month before the shooting.   She did not remember telling Terrazas that she believed Clark had committed the shooting.   When pressed, she said she might have said it from anger and because she was scared.   She did not remember saying that Clark had threatened to shoot her if she ever left him or that he had taken the breakup badly.   She was just angry because he had left her.   She was also confused and under a lot of medication and “could have said a lot of things.”   She did not know who did it.   Approximately 10 days before the shootings, Clark went to the shelter, where Ortega was living, and demanded to speak to her.   She spoke to him, but did not go outside, since she was in class.   Clark left a short time later.

Terrazas testified that Ortega did not elaborate as to who left whom.   She did tell Terrazas that Clark threatened to shoot her if she left him.   She told Terrazas that Clark had been at the shelter 10 days before the crimes and had yelled for her to come out.

Terrazas said he did not contact Clark's parole agent because he was not ready to speak with Clark and did not want to tip him off that he might be a suspect.   He never did speak to Clark during the investigation.   Terrazas checked into Clark's criminal background but did not recall the offense for which he was on parole, or if the crime was the making of terrorist threats.   Defendant's counsel asked if Terrazas had pulled computer generated information from the Department of Corrections that would contain information about Clark's offense, and Terrazas said he had, that he should have a copy, and that looking at the copy would refresh his recollection.   The prosecutor objected as to relevance, and the trial court sustained the objection on the grounds of Evidence Code section 352 and “third-party exculpatory.”   When defendant's counsel next asked Terrazas if he had determined whether Clark was gang affiliated, the prosecutor objected on relevance grounds.   The trial court sustained the objection.   Defense counsel then asked, “What type of investigation other than finding out from Jessica Ortega that he made a threat to her 10 days prior to the shooting, what other investigation did you go into of Mr. Clark to determine what type of person he was and whether or not he was an actual suspect?'   Terrazas replied, “Other than run his criminal history record and his parole leads-parole-computer generated printout, that was the extent, other than speaking with Miss Ortega and the victims at the scene.”   When asked if other victims had information, Terrazas said that one other person confirmed that Clark had been at the shelter.

On redirect, the prosecutor confirmed that no one had ever told Terrazas that they saw Clark at the corner where the shooting took place and that Terrazas had not obtained any evidence connecting Clark to the shooting at any time.

C. Relevant Authority

All relevant evidence is admissible.  (Evid.Code, § 351.)   Relevant evidence is all evidence “including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.”  (Evid.Code, § 210.)   A trial court has wide discretion in determining the relevance of evidence.  (People v. Warner (1969) 270 Cal.App.2d 900, 908.)   We review the admission and exclusion of evidence on relevance grounds for abuse of that discretion.  (People v. Kipp (2001) 26 Cal.4th 1100,

1123 [relevance objection].)

The United States Supreme Court has held that a defendant is entitled to present “a complete defense.”  (California v. Trombetta (1984) 467 U.S. 479, 485;  Chambers v. Mississippi (1973) 410 U.S. 284, 302.)   However, that right is not unlimited.  (United States v. Scheffer (1998) 523 U.S. 303, 308;  Chambers v. Mississippi, supra, 410 U.S. at pp. 302-303;  People v. Brown (2003) 31 Cal.4th 518, 538.)   The California Supreme Court has held that “ ‘[a]s a general matter, the ordinary rules of evidence do not impermissibly infringe on the accused's [constitutional] right to present a defense.   Courts retain ․ a traditional and intrinsic power to exercise discretion to control the admission of evidence in the interests of orderly procedure and the avoidance of prejudice.  [Citations.]  ․ [T]his principle applies perforce to evidence of third-party culpability․’  [Citation.]”  (People v. Cudjo (1993) 6 Cal.4th 585, 611, quoting People v. Hall (1986) 41 Cal.3d 826, 834-835;  see also People v. Panah (2005) 35 Cal.4th 395, 483 [a trial court is permitted to curtail cross-examination relating to irrelevant matters and matters falling under section 352];  People v. Frye (1998) 18 Cal.4th 894, 946, overruled on another point in People v. Doolin (2009) 45 Cal.4th 390, 421 [“not every restriction on a defendant's desired method of cross-examination is a constitutional violation ․ the trial court retains wide latitude in restricting cross-examination”];  People v. Jones (1998) 17 Cal.4th 279, 305.)

It is well settled that third party culpability evidence is admissible if it is “capable of raising a reasonable doubt of defendant's guilt.”  (People v. Hall, supra, 41 Cal.3d at p. 833.)   However, “evidence of mere motive or opportunity to commit the crime in another person, without more, will not suffice to raise a reasonable doubt about a defendant's guilt:  there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime.”  (Ibid ;  see also People v. Page (2008) 44 Cal.4th 1, 38.)   The rule does “ ‘ “not require that any evidence, however remote, must be admitted to show a third party's possible culpability․” ’ ”  (People v. Panah, supra, 35 Cal.4th at p. 481.)

Even if there is direct or circumstantial evidence linking a third person to the crime, the court must apply Evidence Code section 352.  (People v. Hall, supra, 41 Cal.3d at p. 833.)   Admission of third party culpability evidence is thus “based upon its relevance and weight as against its capacity to confuse, delay or prejudice․”  (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1174.)  “Rulings under Evidence Code section 352 come within the trial court's discretion and will not be overturned absent an abuse of that discretion.  [Citations.]”  (People v. Minifie (1996) 13 Cal.4th 1055, 1070.)

D. No Abuse of Discretion or Constitutional Violation

The trial court did not err in excluding the evidence.   The possibility was exceedingly remote that permitting defense counsel to inquire about what crime Clark was on parole for committing and whether or not he was gang-affiliated would elicit either direct or circumstantial evidence linking him to the perpetration of the shootings.   Terrazas testified that he did not find any evidence whatsoever linking Clark to the shootings.   No one at the bus stop saw Clark at the shooting scene.   Clark's visit to Ortega at the shelter occurred 10 days before the shooting.   Although defense counsel linked his threat to Ortega to that visit, there was actually no evidence that he made the threat on that occasion.   Ortega and Clark were already apart when Clark visited her at the shelter.   In light of all of the foregoing, any testimony elicited by defense counsel about Clark's criminal history or whether he was a gang member or associate would have little relevance, if any at all.   In any event, any ambiguity as to the identity of the shooter arguably created by Ortega's statements just after her shooting was adequately put before the jury by the questions defense counsel was permitted to ask.

Moreover, as stated previously, the application of the rules of evidence to third party culpability claims does not ordinarily infringe impermissibly upon the defendant's right to present a defense.  (People v. Frye, supra, 18 Cal.4th at p. 945;  People v. Hall, supra, 41 Cal.3d at pp. 834-835.)   Exclusion of the proffered evidence infringes upon that right impermissibly only if it prejudices the defendant to such a degree as to deny him a fair trial.   In this case, the trial court's ruling did not constitute a refusal to allow defendant to present a defense, but merely rejected certain potential evidence concerning the defense.  “ ‘ “Although completely excluding evidence of an accused's defense theoretically could rise to [the level of an unconstitutional deprivation of the right to present a defense], excluding defense evidence on a minor or subsidiary point does not impair an accused's due process right to present a defense.” ’ ”  (People v. Thornton (2007) 41 Cal.4th 391, 443.)   In this case, defense counsel stated in closing argument that it was “interesting” that Ortega was the first person to be shot, and that McKinney was only shot as he was running towards the area where the shots were occurring.   Counsel argued that the shooters' car happened to “conveniently stop right where she was located with her then boyfriend at the time.   I don't think we should ignore the fact that she was first that was hit.   I think it is reasonable to assume from that she was the intended target.”

In any event, if the trial court erred, “ ‘[t]he trial court's ruling was an error of law merely;  there was no refusal to allow [defendant] to present a defense, but only a rejection of some evidence concerning the defense.’   [Citation.]  Accordingly, the proper standard of review is that announced in People v. Watson (1956) 46 Cal.2d 818, 836, and not the stricter beyond-a-reasonable-doubt standard reserved for errors of constitutional dimension (Chapman v. California (1967) 386 U.S. 18, 24).”  (People v. Fudge (1994) 7 Cal.4th 1075, 1103;  see also People v. Bradford (1997) 15 Cal.4th 1229, 1325.)   In light of the strong evidence against defendant and the complete lack of evidence linking Clark to the shooting, it was not reasonably probable defendant would have received a more favorable verdict had the trial court permitted defense counsel to cross-examine the witness about whether Clark had a gang affiliation or about the nature of his prior offense.

Finally, defendant argues that the determination of defendant's guilt was extremely close and difficult as evidenced by four days of deliberation, a request for further instruction, and the selective verdicts.   We believe it more likely the difficulties for the jury occurred in determining what responsibility to assign to Hare and in reaching a unanimous decision to acquit him, given the evidence against him.

II. Trial Court's Response to Jury Query

A. Defendant's Argument

Defendant contends the trial court erred in failing to promptly reply to the jury on May 23, 2008, when it sent the trial court a note asking, “Is the charge of aiding and abetting in a murder the same as murder 1?” The jury returned its verdicts on May 27, 2008, without having received a reply.   According to defendant, the trial court's delay in replying due to the prosecution's specious objection to the trial court's proposed answer, which was based on well-settled law, was prejudicial error.

B. Proceedings Below

The trial court read the jury the standard instructions on murder, attempted murder, first degree murder or attempted murder, and the aiding and abetting theory by reading CALCRIM Nos. 400, 401, 520, 521, 600, and 601.   CALCRIM No. 400 instructed the jury that “A person is equally guilty of a crime whether he committed it personally or aided and abetted the perpetrator who committed it.”   CALCRIM No. 401 told the jury that, to prove a defendant is guilty of a crime based on aiding and abetting that crime, the People had to prove that the defendant knew the perpetrator intended to commit the crime, and the defendant intended to aid the perpetrator in committing the crime and did in fact do so.

The jury retired to deliberate on Wednesday, May 21, 2008, at approximately noon.   According to remarks made by the trial court for the record, on Friday, May 23, 2008, the Friday before the celebration of Memorial Day, the jury asked for the impound report for Bailey's car and Sherwood's report and was told that those items were not in evidence, a response to which both parties agreed.   At 2:35 p.m. on the same day, the jury sent a note asking, “Is the charge of aiding and abetting in a murder the same as murder 1?” The trial court proposed a response stating, “An aider and abetter to murder must have acted willfully, deliberately, and with premeditation to be guilty of murder in the first degree.”   Defense counsel agreed with that response, but the prosecution asked for time to research the matter and asked for a hearing on Tuesday, May 27, 2008, the first day after the holiday.   Apparently the trial court could not gather all counsel on Tuesday morning “in an expeditious manner.”   The trial court stated for the record that, “the jury indicated that they did not need the note responded to and continued with deliberations.   We now have been advised by the jurors that they have a verdict, and we're going to receive the verdict.”

C. Relevant Authority

Section 1138 provides:  “After the jury have retired for deliberation, if there be any disagreement between them as to the testimony, or if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court.   Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called.”

The court has a duty to help the jury understand the legal principles it is asked to apply.  (People v. Thompkins (1987) 195 Cal.App.3d 244, 250.)   “Jury questions can present a court with particularly vexing challenges,” as “[t]he urgency to respond with alacrity must be weighed against the need for precision in drafting replies that are accurate, responsive, and balanced.”   (People v. Moore (1996) 44 Cal.App.4th 1323, 1331.)   Appellate review of a trial court's response to a jury inquiry is limited to determining if the court abused its discretion.  (People v. Gordon (1990) 50 Cal.3d 1223, 1260, overruled on another point as stated in People v. Hamilton (2009) 45 Cal.4th 863, 926.)

D. No Error

A party's failure to raise an argument or objection before the trial court generally precludes that party from raising it on appeal.  “When a party does not raise an argument at trial, he may not do so on appeal.  [Citations.]”  (People v. Clark (1993) 5 Cal.4th 950, 988, fn. 13, overruled in part in People v. Doolin, supra, 45 Cal.4th at p. 421.)   For example, the failure to object to a trial judge's decision not to respond to a jury inquiry results in the forfeiture of the issue on appeal.  (People v. Boyette (2002) 29 Cal.4th 381, 430;  see also People v. Price (1991) 1 Cal.4th 324, 414 [failure to object to the manner in which a court responded to the jury's request forfeited challenge].)   Here, there is no record that defendant objected to the trial court's delay in responding to the jury query.   Defendant therefore forfeited any appellate challenge to the trial court's actions below in response to the jury's query and apparent withdrawal of that query.

In any event, we find no merit to defendant's claim of error.   The trial court did not refuse to answer the jury's question, which was made at 2:35 p.m. in the afternoon before a holiday weekend.   Rather, the court delayed its response until the following court day, at which time the jury indicated it did not need a reply.   In a similar situation involving a jury's request for readback, the court in People v. Gonzales (1968) 68 Cal.2d 467 (Gonzales ) found no error.   In that case, after deliberating for several hours, the jury requested readback of the information and of certain testimony by police officers.   The court read the information but told the jury the court reporter would not have his notes ready until the following morning.   The court also told the jury that it would be unfair for the jury to assume that, since the testimony would be unavailable until the next day, they could terminate their deliberations one way or the other without it.   The court also told the jury they could continue deliberating that afternoon but, if it was impossible to do so without the requested testimony, they could stop until the next morning.   The jury retired and returned with a guilty verdict 15 minutes later, which was then read.   (Id. at p. 472.)

The reviewing court held that no error occurred, stating, “It thus appears that before the court was able to fulfill the request the jury manifestly decided that the reading of the testimony was unnecessary.   Under the circumstances the court did not err in receiving the verdict without reading the testimony to the jury.”  (Gonzales, supra, 68 Cal.2d at pp. 472-473;  see also People v. Warren (1900) 130 Cal. 678, 681-682 (Warren ) [trial court informed jury that requested readback of testimony could not take place until 9:00 a.m. the following day, and the jury returned with its verdict shortly before 9:00 a.m.;   no error found];  People v. Stafford (1973) 29 Cal.App.3d 940, 943-945 (Stafford ) [no error occurred where jury reached a verdict before hearing readback of testimony] (Stafford );  People v. Slaughter (1917) 33 Cal.App.365 (Slaughter ) [jury manifestly did not require readback when it returned verdict after being told of delay in preparing readback, and no error occurred, since trial court had prepared to comply with jury request].)

Likewise, no error occurred in the instant case.   The trial court did not refuse to answer the jury's question.   The jury, like the juries in Gonzales, Warren, Stafford, and Slaughter decided it could reach a verdict without the answer to its question.   The jury had received sufficient instruction to be able to do so.3  CALCRIM No. 401 told the jury that, “Someone aids and abets a crime if he knows of the perpetrator's unlawful purpose and he specifically intends to, and does in fact, aid, facilitate, promote, encourage, or instigate the perpetrator's commission of that crime.”   (Italics added.)   Although section 1138 requires the trial court to assist the jury in understanding applicable legal principles, “[t]his does not mean the court must always elaborate on the standard instructions.   Where the original instructions are themselves full and complete, the court has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the jury's request for information.  [Citation.]  Indeed, comments diverging from the standard are often risky.  [Citation.]”  (People v. Beardslee (1991) 53 Cal.3d 68, 97.)   In this case, since the jury was adequately instructed with the standard instructions, we can only assume the jury, upon reflection, was satisfied with the instructions received.  (See People v. Mickle (1991) 54 Cal.3d 140, 174.)

Accordingly, the trial court did not abuse its broad discretion, nor did it violate section 1138 or deny defendant a fair trial.

III. Multiple Enhancements Imposed Pursuant to Sections 12022.53 and 186.22

A. Defendant's Argument

Defendant contends that section 654 bars imposition of multiple section 12022.53, subdivision (d) enhancements when they are dependent upon a true finding under section 186.22, the gang enhancement.   According to defendant, the gang enhancement of section 186.22 is a status enhancement and therefore it relates to the defendant instead of the crime and may be imposed only once.

Alternatively, defendant argues that, even if a gang enhancement is not a status enhancement, when the section 12022.53, subdivision (d) enhancements are based on the vicarious liability of a defendant who is found to have committed the crime for the benefit of a gang, multiple punishment is prohibited under section 654.

B. Relevant Authority

Section 654, subdivision (a), provides in pertinent part, “[a]n act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.”  “Section 654 therefore ‘ “precludes multiple punishment for a single act or for a course of conduct comprising indivisible acts.  ‘Whether a course of criminal conduct is divisible ․ depends on the intent and objective of the actor.’  [Citations.]”  ․' ” (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.)   The statute's purpose is to insure the defendant's punishment will be commensurate with his liability.  (People v. Chaffer (2003) 111 Cal.App.4th 1037, 1044.)

“[W]hether a crime constitutes an act of violence that qualifies for the multiple-victim exception to section 654 depends upon whether the crime ․ is defined to proscribe an act of violence against the person.   Indeed, this is the only way that the multiple-victim exception to section 654's proscription against multiple punishment makes sense:  The existence of an additional victim of the same violent act creates a separate offense, with a different item of proof, ․ where the crime is defined in terms of an act of violence against a person.  [Citation.]  And the defendant ‘who commits an act of violence with the intent to harm more than one person or by a means likely to cause harm to several persons is more culpable than a defendant who harms only one person.’   [Citation.]”  (People v. Hall (2000) 83 Cal.App.4th 1084, 1092-1093.)

C. Section 654 Not Applicable

We disagree with both of defendant's arguments.   First, the enhancement imposed under section 186.22, subdivision (b) is not a status enhancement, for it is not dependent upon defendant's status as a gang member.   Rather, it is dependent upon the circumstances of the crime committed.  (See People v. Coronado (1995) 12 Cal.4th 145, 156-157.)   It was not necessary for defendant to have been a 40 Piru gang member at the time of committing the offenses for the gang enhancement to apply.   Section 186.22, subdivision (b)(1) requires only that:  the accused be convicted of a felony;  the felony must have been committed for the benefit of, or at the direction of, or in association with, a criminal street gang;  and the felony must have been committed “with the specific intent to promote, further, or assist in any criminal conduct by gang members.”   Thus the focus is on the circumstances of the crime rather than the status of the defendant.  (See Ibid.)

In addition, contrary to defendant's argument, the fact that the jury found that the prosecutor had not proved defendant's personal use of a firearm, but only use by a principal, is a distinction without a difference with respect to application of People v. Oates (2004) 32 Cal.4th 1048 (Oates ) and People v. Palacios (2007) 41 Cal.4th 720 (Palacios ).   Section 12022.53, subdivision (e)(1) merely states that the enhancements provided in the section must be applied to anyone who is a principal in a crime (even if he or she did not personally use or discharge the gun) as long as a gang enhancement was found true and a principal committed any act specified in section 12022.53, subdivisions (b), (c), or (d).  This provision clearly removes the distinction between personal use and use by a principal under the specified circumstances.

The issue in Oates was whether a firearm enhancement under section 12022.53 could be applied to each charge of attempted murder when only one person in a group of five victims was injured.  (Oates, supra, 32 Cal.4th p. 1052.)   With respect to the defendant's claim that section 654 prohibited his receiving multiple section 12022.53, subdivision (d) enhancements for his single act, the California Supreme Court reiterated that “ ‘the limitations of section 654 do not apply to crimes of violence against multiple victims.’  [Citation.]”  It noted that the Legislature did not include any limiting language in section 12022.53 that indicated an intention to preclude imposition of multiple enhancements where there are multiple victims.  (Oates, supra, at pp. 1063-1064.)

In Palacios, a firearm enhancement was added to each conviction for a separate crime when the defendant fired only one shot at a single victim in addition to committing the crimes of carjacking, kidnapping, and robbery against him.  (Palacios, supra, 41 Cal.4th at pp. 723-724.)   The issue was whether “section 654 precludes punishment for more than one section 12022.53 enhancement when each is based on a single act committed against a single victim, although in the commission of separate crimes.”  (Palacios, supra, at p. 726.)   Although not a multiple-victim case, Palacios is significant to the instant case in that the court rejected the defendant's argument that the phrase “ ‘[n]otwithstanding any other provision of law,’ ” which appears in subdivisions (b), (c), and (d) but not in the preface to the statute, does not include section 654.  (Oates, supra, 32 Cal.4th at pp. 728-729.)   Defendant similarly argues that, since the phrase does not appear in the preface or in section 12022.53, subdivision (e), this suggests the Legislature intended to treat subdivision (e) differently and therefore not as an exception to section 654.   As we have indicated, section 12022.53, subdivision (e) is different from subdivisions (b), (c), and (d) in that its purpose is to make the provisions of subdivisions (b), (c), and (d) applicable to offenders when a principal in the crime rather than the offender himself uses a gun in a gang-related crime.   Subdivision (e) serves to make personal versus principal use a non-issue when the factors listed in subdivision (e)(1)(A) and (B) are pled and proved.

We conclude the enhancements imposed in defendant's case clearly fall within the multiple-victim exception applied to section 654 even though his liability for shooting the gun was vicarious.   No fine parsing of the language in section 12022.53 or the authority cited ante, can overcome this conclusion.   Defendant's argument is without merit.

IV. Evidence in Support of Count 5 and Gang Enhancement

A. Defendant's Argument

Defendant contends there was no substantial evidence that he possessed the firearms seized from the black Suburban.   Therefore insufficient evidence supports the verdict in count 5 and its accompanying gang enhancement.   According to defendant, there was an insufficient evidentiary nexus between defendant and the car, since he was not the owner, and he did not have sole possession and control of the car.

Defendant also contends that, assuming count 5 was proved, there was insufficient evidence to support the finding that he possessed a gun for the benefit of a criminal street gang with the specific intent to promote, further, or assist in criminal conduct by gang members.   He points out that the Suburban was locked, which did not allow immediate access to the guns by other gang members.

B. Relevant Authority

“On appeal, we uphold the jury's verdict if there was substantial evidence to support it.  [Citation.]  Considering the entire record, we determine whether there is evidence that is “ ‘ “reasonable in nature, credible, and of solid value” ’ ” from which a “ ‘ “reasonable trier of fact could have found the prosecution sustained its burden of proving the defendant guilty beyond a reasonable doubt.” ’  [Citation.]”  (People v. Carrington (2009) 47 Cal.4th 145, 186-187.)   The substantial evidence standard applies to evidence in support of a criminal street gang enhancement.  (People v. Vy (2004) 122 Cal.App.4th 1209, 1224.)

C. Evidence Sufficient

Contrary to defendant's assertion, the prosecutor did not argue that the only proof of defendant's guilt in count 5 was the fact that he was listed as the buyer of the Suburban in which the cache of guns was found.   There was ample evidence presented that defendant possessed a gun in Bailey's prior statement to police and in the prior statements of Jones.   These prior statements were revealed in the testimony of Villa and the transcripts of his interviews.   In addition, Jones's recorded statement was played for the jury.   It is well settled that, unless a statutory corroboration requirement applies, the testimony of a single witness is sufficient to prove a fact.  (See Evid.Code, § 411 [“Except where additional evidence is required by statute, the direct evidence of one witness who is entitled to full credit is sufficient for proof of any fact”];  People v. Young (2005) 34 Cal.4th 1149, 1181 [testimony of a single witness, unless physically impossible or inherently improbable, is sufficient to support a conviction];  People v. Hampton (1999) 73 Cal.App.4th 710, 722;  In re Corey (1964) 230 Cal.App.2d 813, 826 [robbery victim's uncorroborated testimony is sufficient to support a conviction].)

With respect to the firearm enhancement imposed in connection with count 5, defendant asserts that, except for the gang expert's testimony that the primary activities of the 40 Pirus and AFC included possession of handguns and that gangs commonly stash guns and drugs in trash cans and cars, there was no substantial evidence establishing that defendant possessed the guns found in the Suburban for the benefit of the gang.   Again, defendant ignores the statements made by Bailey and Jones that defendant was playing with and loading a gun before the shootings-the shootings that defendant was found guilty of committing for the benefit of his gang.   Sufficient evidence supports the verdict in count 5 and its gang enhancement.


The judgment is affirmed.


_, J


We concur:

_, P. J.


_, J.



FN1. All further references to statutes are to the Penal Code unless stated otherwise..  FN1. All further references to statutes are to the Penal Code unless stated otherwise.

FN2. The jury acquitted a codefendant, Alvin Hare (Hare), who was charged in counts 1 through 4, of all charges..  FN2. The jury acquitted a codefendant, Alvin Hare (Hare), who was charged in counts 1 through 4, of all charges.

FN3. The trial court instructed the jury that, “If you have questions, I will talk with the attorneys before I answer so it may take some time.   You should continue your deliberations while you wait for my answer.”  (See CALCRIM NO. 3550.).  FN3. The trial court instructed the jury that, “If you have questions, I will talk with the attorneys before I answer so it may take some time.   You should continue your deliberations while you wait for my answer.”  (See CALCRIM NO. 3550.)

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