People v. Bassett CA3 ( 2015 )

Filed 3/12/15 P. v. Bassett CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C071072
Plaintiff and Respondent, (Super. Ct. No. 09F02925)
v.
TAMARA NICOLE BASSETT et al.,
Defendants and Appellants.
The night of April 18, 2009, defendant Tamara Bassett went with Roshien Besa to
see friends at Jeremy Sleeper’s house in Elk Grove. There, Bassett intervened in an
argument between Besa and Besa’s boyfriend, Brian McDaniel, and hit McDaniel. In
response, McDaniel hit Bassett in the face, bloodying her nose. Angry, Bassett
threatened to return with her Norteño gang member boyfriend, defendant Raymond
Vigel, “to shoot up the place.” Bassett did return with Vigel, who fired multiple shots
from the car. The drive-by shooting left one person dead and three seriously injured.
1
Defendants were found guilty of first degree murder with a drive-by shooting
special circumstance, three counts of attempted murder, and shooting at an inhabited
dwelling. Various firearm, great bodily injury, and gang enhancements, and a gang
special circumstance as to Vigel were also found true.1 The trial court sentenced both
defendants to life without the possibility of parole; in addition, the court sentenced Vigel
to 160 years to life, and Bassett to 121 years to life.
On appeal defendants raise a myriad of issues, challenging the sufficiency of the
evidence, the admission of certain evidence, the single jury, the jury instructions,
misconduct by the prosecutor and two jurors, and certain fines and fees. We strike
Bassett’s parole revocation fine and order correction of Vigel’s abstract of judgment. In
all other respects, we shall affirm.
FACTS
Evidence at the First Trial
The Shooting
On the evening of April 18, 2009, a group of longtime friends in their 20’s,
including Stephen Benetti, Michael Escarcega, and Justin Hughes, met at Jeremy
Sleeper’s house in Elk Grove, as they did most weekends. The friends were drinking and
playing pool, and a NASCAR race was on the television. Also there that night was a
neighbor, Rocky Arroyo, and his friend Brian McDaniel. No one in this group was
affiliated with a gang.
McDaniel’s girlfriend, Roshien Besa, arrived with her friend Tamara Bassett.
Bassett did not know anyone at the gathering except Besa. Bassett talked with another
1 There were two trials. Each trial used only one jury for both defendants. The first jury
found Vigel guilty on some counts and failed to reach verdicts on others, including all
counts charging Bassett. The second jury found both defendants guilty of all counts
remaining before it.
2
woman about people they knew in Oak Park. Bassett mentioned her boyfriend was in a
gang.
After drinking too much, Besa threw up in the bathroom. McDaniel was angry
and they argued. Bassett got mad at McDaniel and told him not to call Besa a “bitch.”
McDaniel told Bassett to “shut up, bitch,” and she hit McDaniel in the back of the head.
McDaniel turned and hit Bassett in the face, hard enough to cause her nose to bleed.
McDaniel took Bassett’s phone because she was threatening to call her boyfriend
and tell him to “shoot up the place.” Bassett told McDaniel, “[Y]ou hit me. . . . I’m
gonna get my friends to kill you and shoot you.” Bassett continued to yell for ten
minutes that she was going to get her “Norte hom[ie]s” to shoot and kill everyone.
McDaniel told Bassett just to go home and returned her phone; he told her they did not
want problems. Bassett was still angry and Besa and others were trying to calm her
down. Bassett got in her car and made a phone call. Besa got in the car and begged
Bassett not to do anything or bring anyone to Sleeper’s house. Bassett told Besa to get
out of the car. Meanwhile, Bassett was on the phone saying that McDaniel had hit her
and she “wanted something done about it”; she wanted McDaniel killed. When Bassett
made a U-turn, Besa reached over and turned off the car. Bassett demanded that Besa get
out, and she did so. Besa went back to Sleeper’s and Bassett drove away.
Sleeper and Benetti asked Besa to call Bassett so there would not be any problems.
Besa called and asked Bassett to come back and talk. Bassett asked if McDaniel was still
there. Besa had not seen him but assumed he was still there, so she said yes. She asked
Bassett to come by herself; Bassett said she was alone and that she had not picked up her
boyfriend. Meanwhile, there were several calls between Bassett and her boyfriend Vigel.
Bassett then called Besa and said she was outside the house. Besa and Benetti
went out to the car, which was in the street in front of the garage. Besa panicked when
she saw Vigel in the front passenger seat, which was facing the house. Besa and Benetti
talked to Bassett and Vigel, telling them they did not want any problems and that
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McDaniel was not there. The garage door opened revealing several people inside, and
Vigel asked if anyone was McDaniel; Bassett said no. Benetti leaned in the passenger
window to talk. Vigel shouted, “Oak Park 10th Ave.” and fired a gun at Benetti, who had
stepped backwards. Benetti was shot in the stomach, and Vigel shot him three more
times as he staggered toward some grass and fell. Vigel continued to fire into the garage.
When the shooting ended, Bassett and Vigel “sped off.”
The Victims and Their Injuries
The police arrived and found four victims. Benetti was on the lawn. He had been
shot four times and spent 19 days in the hospital. He suffered injuries to his small bowel,
colon, and bladder. The artery in his arm was injured and he suffered vein and nerve
damage. His hip and hand were fractured.
There were more victims in the garage. Alison Freeseha had arrived at Sleeper’s
shortly before the shooting began. She had four gunshot wounds located in the back of
her head, her back, her buttocks, and her lower left leg. The shots were fatal and she was
pronounced dead at the scene.
Justin Hughes was in the garage when the shooting began and tried unsuccessfully
to get back in the house. A bullet completely transected his spinal cord, leaving him
permanently paralyzed. He suffered complications from his injuries, requiring multiple
hospitalizations.
Michael Escarcega dove under the pool table when the shots were fired and called
911. He was shot in the leg and spent a month in the hospital. The gunshot caused injury
to a blood vessel, requiring six or more surgeries to his left leg.
Gang Evidence
Detective Robert Strange testified as a gang expert, although he admitted he had
had limited contact with Oak Park Norteños. He opined that Bassett participated in a
criminal street gang based on her involvement with this case. He testified that Vigel was
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a validated gang member and further opined that Vigel committed the crimes to benefit
and promote the Norteño criminal street gang.
The Defense
Vigel testified in his defense. He admitted he “hung out” with Norteños, but
denied that he had been “jumped in” the gang or committed crimes with the gang. He
testified he was a heavy drinker and usually drank until he blacked out or got belligerent.
The day of the shooting, he had also snorted cocaine.
When Bassett called him and told him she had been hit, he grabbed his gun. When
he saw that her face and hands were full of blood and she was crying, he got mad and told
her to take him to where she had been hit. He had no plan, but intended to “humiliate”
McDaniel, probably to fight him. He claimed Bassett did not know that he owned a gun
and they had no conversation about the gun.
Vigel testified he thought Benetti was going to hit him, so he pulled out the gun
and fired. It was a “messed up” decision. Vigel claimed he did not aim and was not
trying to kill anyone. After the shooting, both he and Bassett cried. He testified the
shooting was wrong and he should not have done it.
Bassett’s mother and stepfather testified to Bassett’s good character.
A clinical and forensic pathologist testified about how factors such as the
consumption of alcohol, stress, and a traumatic event, affect memory and recall.
Verdicts
The jury found Vigel guilty of first degree murder (Pen. Code, § 187),2 and found
various firearm enhancements (§ 12022.53, subds. (b)-(d)) and a drive-by shooting
special circumstance true (§ 190.2, subd. (a)(21)). The jury also found Vigel guilty of the
attempted deliberate and premeditated murder of Benetti, with the same firearm
2 Further undesignated statutory references are to the Penal Code.
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enhancements and a great bodily injury enhancement (§ 12022.7, subd. (a)), and shooting
at an inhabited dwelling (§ 246).
The jury could not reach a verdict as to Vigel on the gang enhancements or the
gang special circumstance, or counts three and four, the attempted murder of Hughes and
Escarcega. The jury was “hopelessly deadlocked” on all counts as to Bassett. The trial
court declared a mistrial as to these counts and allegations. The People elected to set the
matter for retrial.
Evidence at the Second Trial
The evidence at the second trial was substantially similar to that at the first,
although there was additional testimony about Bassett’s threats and gangs, and additional
witnesses. Hughes was unavailable due to medical problems, so his prior testimony was
read to the jury. Vigel elected not to testify. Bassett introduced his prior testimony.
Officer Mitchell Marquez and lead investigator Detective Brandon Gomez testified about
their interview with Besa at the scene. She was afraid for her and her child’s safety and
did not want to testify. Besa had said when she saw Bassett and Vigel, she knew Vigel
would kill someone because “they” always talked about how Vigel was in a gang and
gang members do not care who they kill. Although Besa had not heard Vigel talk about
people he had killed, he always wore red and said, “I’m gonna clap this guy.” To “clap”
means to shoot.
Escarcega testified he heard Vigel shout “14th Avenue” before he fired. He
admitted that he had not testified to that in the “first proceeding.” To corroborate
Escarcega’s testimony about Bassett’s threats to get her “Norte homies” to kill them, the
People introduced the testimony of two police officers. These officers testified Escarcega
had told them about these threats.
Others who were at Sleeper’s house that night testified as well. Robert Arroyo, a
neighbor, testified Bassett talked about Oak Park and 14th or 44th Avenue. He told her
there was no gang-banging going on at Sleeper’s. After McDaniel hit her, Bassett was
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mad and said she would come back with her boyfriend and shoot everyone. Sleeper
testified, confirming the basic outline of what happened that night. McDaniel testified he
heard Bassett talk about gangs that night. Strangely, he testified he did not believe he had
hit Bassett, but conceded that obviously he had.
Gang Evidence
Detective Don Schumacher testified as an expert on “criminal street gang[s] in
general, specifically Hispanic.” He had been the lead detective in over 100 Norteño
gang-related crimes. He testified to his opinion that Vigel was a Norteño gang member.
He based this opinion on a number of factors. Twice, Vigel had admitted being a
member of the Oak Park Norteños. There were photographs in which Vigel flashed
Norteño gang signs. Vigel had been in repeated contact with other Norteño gang
members and had been involved in gang-related crimes. Schumacher further opined that
Vigel was actively participating with the Norteño gang when he committed these crimes.
He opined that Bassett was not a gang member, but she acted in association with the
gang. The basis of this opinion was her making threats concerning Vigel to the others
and her knowledge of his gang membership. Based on a hypothetical that tracked the
facts of this case, Schumacher opined that Bassett acted in association with the gang and
Vigel acted to benefit the gang.
Verdicts and Sentencing
The jury found defendants guilty of all remaining charges. As to Vigel, the jury
found true the gang special circumstance relating to Freeseha’s murder. (§ 190.2, subd.
(a)(22).) The jury also found true gang enhancements as to all counts. (§ 186.22, subd.
(b)(1).) It found Vigel guilty of the attempted deliberate and premeditated murder of
both Hughes and Escarcega (§§ 664/187), with firearm (§ 12022.53, subds. (b)-(d)) and
great bodily injury (§ 12022.7, subds. (a)-(b)) enhancements.
The jury found Bassett guilty of first degree murder of Freeseha (§ 187), with
firearm and gang enhancements (§§ 12022, subd. (a)(1), 186.22, (b)(1), 12022.53, subd.
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(e)(1)) and a drive-by special circumstance (§ 190.2, subd. (a)(21)); the attempted
deliberate and premeditated murder of Benetti, Hughes, and Escarcega, with the same
enhancements; and discharging a firearm at an inhabited dwelling (§ 246), with the gang
and gang-related firearm enhancements (§§ 186.22, subd. (b)(1), 12022.53, subd. (e)(1)).
The court sentenced Vigel to life in prison without the possibility of parole plus
160 years to life. The court sentenced Bassett to life in prison without the possibility of
parole plus 121 years to life.
DISCUSSION
I
Insufficient Evidence of First Degree Murder and Attempted Murder
Vigel contends there is insufficient evidence to support his convictions for first
degree murder and attempted murder. He contends the evidence “establishes” that he
acted in the heat of passion and therefore he is guilty only of manslaughter and attempted
manslaughter. Bassett joins this contention, arguing that because the evidence supports
only a finding that Vigel acted in the heat of passion, she must be acquitted. The People
assert there was substantial evidence that both defendants acted with premeditation and
deliberation. We agree.
A. The Law
“In assessing the sufficiency of the evidence, we review the entire record in the
light most favorable to the judgment to determine whether it discloses evidence that is
reasonable, credible, and of solid value such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt. [Citations.] Reversal on this ground is
unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient
substantial evidence to support [the conviction].’ [Citation.]” (People v. Bolin (1998)
18 Cal.4th 297, 331 (Bolin).)
“We normally consider three kinds of evidence to determine whether a finding of
premeditation and deliberation is adequately supported—preexisting motive, planning
8
activity, and manner of killing—but ‘[t]hese factors need not be present in any particular
combination to find substantial evidence of premeditation and deliberation.’ [Citation.]
If the evidence of preexisting motive and planning activity by itself is sufficient to
support the first degree murder conviction on a theory of premeditation and deliberation,
we need not review the evidence concerning the manner of killing. [Citation.]”
(People v. Jennings (2010) 50 Cal.4th 616, 645-646.) “A first degree murder conviction
will be upheld when there is extremely strong evidence of planning, or when there is
evidence of motive with evidence of either planning or manner. [Citations.]” (People v.
Romero (2008) 44 Cal.4th 386, 401 (Romero).)
B. Analysis
Here, the evidence of preexisting motive was very strong. After McDaniel struck
Bassett, she vowed to get revenge. She threatened “to get my Norteno homies and come
kill you.” She said she would return with her boyfriend and shoot everyone. The
evidence indicated Vigel shared this motive as Bassett called and said she wanted
“something done about it”; she wanted McDaniel killed. Vigel testified Bassett called
him, hysterical, and said she had been hit. Vigel then heard a male voice and the line
went dead. Vigel was angry and immediately left to find Bassett.
There was ample evidence from which the jury could infer planning. There were
several calls between Vigel and Bassett, beginning just before midnight and continuing
until about half past midnight; one call lasted six minutes. These calls gave Bassett and
Vigel the opportunity to plan for revenge. Vigel armed himself with a gun after the first
call from Bassett. A jury can infer planning when the defendant brings a gun to the crime
scene. (See Romero, supra, 44 Cal.4th at p. 401.) In the phone calls between Bassett and
Besa, Bassett asked Besa if McDaniel was still there (to which Besa replied he was) and
told Besa that she was coming back alone, suggesting a plan for revenge that required
surprise at Vigel’s participation. Bassett kept the car running while Vigel repeatedly
fired, and drove away when he stopped shooting. This evidence suggests she knew that
9
Vigel was going to shoot at people, acquiesced in and facilitated the carnage while it was
ongoing, and planned to (and did) leave quickly thereafter in order to escape
responsibility.
Substantial evidence supports the verdicts for first degree murder and attempted
deliberate and premeditated murder for both defendants.
II
Insufficient Evidence of Gang Enhancements and Special Circumstance
Both Vigel and Bassett contend there was insufficient evidence to support the
gang enhancements, and in Vigel’s case the gang special circumstance also. They make
different arguments. Although both Benetti and Hughes testified that Vigel said “Oak
Park, 10th Avenue” before the shooting, Vigel contends this evidence is insufficient to
show the crime was gang related because others nearby, especially Besa and Sleeper, did
not hear these words, and Hughes did not report these words to the police. Bassett
contends the evidence, particularly Schumacher’s vague testimony, was insufficient to
establish either the primary activities or the predicate offenses of Vigel’s gang.
A. The Law
Section 186.22, subdivision (b)(1) provides for a sentence enhancement for “any
person who is convicted of a felony committed for the benefit of, at the direction of, or in
association with any criminal street gang, with the specific intent to promote, further, or
assist in any criminal conduct by gang members.” A “criminal street gang” “means any
ongoing organization, association, or group of three or more persons, whether formal or
informal, having as one of its primary activities the commission of one or more of”
enumerated criminal acts, “having a common name or common identifying sign or
symbol, and whose members individually or collectively engage in or have engaged in a
pattern of criminal gang activity.” (§ 186.22, subd. (f).) A “pattern of gang activity”
may be shown by the commission of two or more of certain offenses, committed within
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certain time frames “on separate occasions, or by two or more persons.” (§ 186.22, subd.
(e).) This law is set forth in the pattern jury instruction CALCRIM No. 1401.
A gang special circumstance requires that the defendant “intentionally killed the
victim while the defendant was an active participant in a criminal street gang, as defined
in subdivision (f) of Section 186.22, and the murder was carried out to further the
activities of the criminal street gang.” (§ 190.2, subd. (a)(22).)
The standard of review of the sufficiency of the evidence of gang special
circumstances and gang enhancements is the same as for any other conviction. (People v.
Streeter (2012) 54 Cal.4th 205, 241; People v. Ochoa (2009) 179 Cal.App.4th 650, 657.)
The evidence must be “reasonable, credible, and of solid value.” (Bolin, supra,18 Cal.4th at p. 331.)
B. Vigel’s Contention
Vigel contends there was insufficient evidence that his crimes were gang related
rather than personal. He argues the evidence showed he acted because Bassett was
injured. He recognizes there was evidence that before he fired, he yelled out his gang
subset, “Oak Park, 10th Avenue,” but argues this evidence was not substantial.
Detective Schumacher testified that gang members will announce their gang
affiliation to show their gang is responsible for the crimes and to enhance the gang’s
reputation. From this evidence, the jury could infer the crimes were committed to benefit
the gang. (See, e.g., People v. Miranda (2011) 192 Cal.App.4th 398, 412 [expert
explained that “[w]hen a gang member announces his gang affiliation during commission
of a crime, the entire gang is benefited by an enhanced reputation”]; People v. Samaniego
(2009) 172 Cal.App.4th 1148, 1162 [defense expert testified that “[w]hen a group
commits a gang crime, it is customary for them to yell out their gang’s name”].)
Vigel argues Benetti’s testimony that he heard Vigel shout those words just before
he fired is not substantial evidence because the others present, especially Besa who was
standing right next to Benetti, did not testify they heard the same. Hughes also testified
11
he heard “10th Ave.” when the shots were fired and this testimony was read at the second
trial where the jury found the gang allegations true. Vigel discounts Hughes’s testimony
because shortly before trial Hughes did not tell an investigator that he heard Vigel yell
the gang affiliation.
These alleged “defects” in the evidence were explored on cross-examination, but
the jury accepted the testimony that showed the shooting was identified as a gang crime,
intended to benefit the gang and enhance its reputation. It is the exclusive province of the
jury to resolve conflicting evidence and decide credibility issues. (People v. Ochoa
(1993) 6 Cal.4th 1199, 1206; People v. Martinez (2008) 158 Cal.App.4th 1324, 1331.)
“Moreover, unless the testimony is physically impossible or inherently improbable,
testimony of a single witness is sufficient . . . .” (People v. Young (2005) 34 Cal.4th
1149, 1181 (Young).) “[I]f the verdict is supported by substantial evidence, we must
accord due deference to the trier of fact and not substitute our evaluation of a witness’s
credibility for that of the fact finder. [Citations.]” (People v. Jones (1990) 51 Cal.3d
294, 314.)
Vigel further contends that there was insufficient evidence he acted “in association
with” a criminal street gang. Under section 186.22, subdivision (b), the gang
enhancement is established by proof defendant acted “for the benefit of, at the direction
of, or in association with any criminal street gang, with the specific intent to promote,
further, or assist in any criminal conduct by gang members.” (Italics added.) Having
established that Vigel acted “for the benefit of” the Oak Park Norteños, the People were
not required to also prove that he acted “in association with” the gang.
C. Bassett’s Contention
Bassett contends there is insufficient evidence to establish either the primary
activity or predicate offenses of Vigel’s gang. She argues Schumacher’s testimony on
these points is too vague.
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1. Primary Activity of Gang
Bassett contends Schumacher did not establish any primary activity of the gang.
Instead, she contends, he testified only to his investigations.
The People asked Schumacher what, in his opinion, is the primary activity of the
Norteño criminal street gang. He responded, “[A]s far as the larger Norteno gang is
concerned, I’ve investigated . . . crimes ranging from graffiti to felony assaults with
deadly weapons to felony batteries, possession of illegal firearms, assaults with firearms,
drive-by shootings, car-jackings, . . . even several murders.”
In claiming this testimony is insufficient to establish the gang’s primary activities,
Bassett relies on In re Alexander L. (2007) 149 Cal.App.4th 605 (Alexander L.) and In re
Nathaniel C. (1991) 228 Cal.App.3d 990 (Nathaniel C.). In Alexander L., when asked
about the primary activities of the gang, the expert responded, “ ‘I know they’ve
committed quite a few assaults with a deadly weapon, several assaults. I know they’ve
been involved in murders. [¶] I know they’ve been involved with auto thefts,
auto/vehicle burglaries, felony graffiti, narcotic violations.’ ” (Alexander L., at p. 611.)
The court found this testimony insufficient because even if the court inferred the expert
meant the primary activities were those crimes to which he referred, the testimony lacked
an adequate foundation. Nothing in the expert’s testimony established its reliability; he
did not testify as to how he “knew” of the crimes. (Id. at pp. 611-612.) The testimony
was conclusory. (Id. at p. 612.) Likewise, the gang expert in Nathaniel C. offered only
“vague, secondhand testimony” about what he had been told by the police in another area
to establish one of the predicate crimes; he had no personal knowledge. (Nathaniel C., at
p. 1003.) Here, by contrast, Schumacher testified at length about his experience with
Norteño gangs. The crimes he listed were those he had personally investigated.
We reject the argument that Schumacher’s testimony did not establish the crimes
he listed were primary activities of the gang. In People v. Margarejo (2008)
162 Cal.App.4th 102, the gang expert was asked the primary activities of a gang and
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responded by describing the gang’s activities. Defendant contended this evidence was
insufficient because the expert left out the word “primary” in his answer. The court
rejected this contention, reasoning that while counsel’s questions are not evidence, their
wording is relevant in interpreting the answer and sometimes is vital, such as when the
answer is simply “yes.” (Id. at p. 107.) “Here the jury had ample reason to infer that [the
expert’s] answer implicitly incorporated the word ‘primary’ from the question.” (Ibid.)
Unlike the expert in Alexander L., Schumacher provided sufficient background
information about his training and the sources of his information concerning the Norteño
criminal street gang to support the reliability of his opinions and conclusions. That he did
not repeat the term “primary activities” in response to the People’s question does not
provide a reasonable basis to interpret his response as meaning anything other than that
the crimes he listed, which he had personally investigated, were the principal activities of
the gang.
2. Predicate Offenses
Schumacher testified about three predicate offenses, crimes committed by a Mr.
Torrez and a Mr. Bruno (both Oak Park Norteños), to establish the gang’s pattern of
criminal activity. In June 2007, Torrez picked up a trash can lid, yelled out “Oak Park”
and threw the lid through the window of a vehicle striking a rival gang member in the
face. A few months later, Torrez’s cousin beat up someone believed to be a “snitch” and
then, while the perceived snitch was on the ground, Torrez came out of the crowd and
shot him multiple times in the stomach. Torrez sustained a conviction for “these crimes”
that included a gang enhancement. In August 2007, Bruno crashed a birthday party and
asked a partygoer his gang affiliation. The individual responded that he was not in a
gang and went to his vehicle to leave. Bruno fired multiple rounds into the victim’s
vehicle as it left the parking lot. Bruno was convicted of “this crime,” including a gang
enhancement.
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Bassett does not dispute that these crimes may qualify as predicate offenses under
section 186.22, subdivision (e). Instead, she objects on the basis that Schumacher did not
identify the crimes that Torrez and Bruno committed. She contends the People
“submitted no documentary evidence to establish the crimes of conviction and the jury
was not instructed on the elements of the crimes that supported the predicate offenses.”3
While Schumacher did testify that both Torrez and Bruno were convicted of their
offenses, with a gang enhancement, he was not asked to identify the crimes of conviction,
and the People simply referred to the various offenses to which he was testifying as
“these crimes” or “this crime.” So the offenses committed by Torrez and Bruno were
never identified--either for the jury, or otherwise. Under section 186.22, subdivision (e),
a pattern of criminal activity may be shown by evidence of the commission or attempted
commission of two or more predicate crimes--proof of conviction is not required. The
first enumerated crime in that subdivision is assault with a deadly weapon or by means of
force likely to produce great bodily injury. (§ 186.22, subd. (e)(1).) This offense seems
to encompass the criminal conduct of both Torrez and Bruno as described by
Schumacher. Thus, in order to determine whether substantial evidence supports the
jury’s finding of the requisite predicate offenses, we would need to determine whether a
3 At oral argument, without sufficient advance notice to the court, Bassett sought to rely
on People v. Garcia (2014) 224 Cal.App.4th 519, in which a gang enhancement was
reversed for insufficient evidence of the required predicate offenses. In Garcia, the
People failed to prove the predicate offenses because the proffered evidence did not show
the offenses were within three years of each other as required by section 186.22,
subdivision (e). (Garcia, at p. 525.) The court also rejected the People’s argument that
defendant’s conduct could be used to show the commission of a predicate offense, even
though he had been acquitted. While the statute permits establishing a predicate offense
by either “commission” or “conviction,” the Garcia jury had been instructed--
erroneously--that a conviction was necessary to establish a predicate offense. (Ibid.)
Garcia does not aid Bassett because the defects in the evidence there are not present in
this case. Here, there is no issue as to the three-year limitation, and our analysis follows
the instructions as given to the jury.
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jury could find, without instruction on the elements, that the actions of Torrez and Bruno-
-which resulted in convictions for unspecified crimes--constituted the predicate crime of
assault with a deadly weapon or by means of force likely to produce great bodily injury.4
However, as we explain post, because here the jury was not instructed that assault of any
kind even qualified as a predicate offense for purposes of finding a pattern of criminal
gang activity, we cannot make that determination. We cannot look to legal theories not
before the jury in seeking to reconcile a jury verdict with the substantial evidence rule.
(People v. Kunkin (1973) 9 Cal.3d 245, 251.)
The trial court instructed the jury that one of the requirements of a criminal street
gang was that its members “engage in a pattern of criminal activity.” It defined that
pattern as, “[T]he commission of or attempted commission of or a conspiracy to commit,
or solicitation to commit, or conviction of attempted murder in violation of Penal Code
section 664/187(a) or murder in violation of Penal Code section 187.” Under this
instruction, given in both trials, the predicate offenses were limited to murder and
attempted murder.
CALCRIM No. 1401 requires that the applicable crimes from section 186.22,
subdivision (e) (of which there are 33) be inserted into the instruction. Here, apparently
by mistake, only the charged offenses were inserted instead of all the predicate offenses
for which there was evidence. As the People argued in closing, the purpose of
Schumacher’s testimony about the crimes of Torrez and Bruno was to prove the pattern
of criminal gang activity.
4 We observe that the bench notes to CALCRIM No. 1401 direct: “The court should
also give the appropriate instructions defining the elements of crimes inserted in the list
of alleged ‘primary activities,’ or the definition of ‘pattern of criminal gang activity’ that
have not been established by prior convictions or sustained juvenile petitions.”
16
We requested supplemental briefing addressing the adequacy of CALCRIM No.
1401 as given, and the effect of any inadequacy on this case.
Defendants respond the instructions given were inadequate to permit the jury to
find the gang enhancements or the gang special circumstance true. The jury received no
instruction on aggravated assault (with a firearm or with force likely to produce great
bodily injury), either as to its elements or that such crime could serve as a predicate
offense. While the jury was instructed on the elements of murder and attempted murder,
those instructions specified they related to the charged offenses. More importantly,
defendants contend Schumacher’s testimony about the facts of the predicate offenses was
too cursory to provide sufficient evidence that either Torrez or Bruno committed murder
or attempted murder.
Surprisingly, the People’s supplemental brief does not recognize any mistake in
the instruction. The People argue the trial court did not need to instruct on the elements
of the predicate offenses because Schumacher testified both Bruno and Torrez were
convicted of their crimes, although the People’s briefing, like the prosecutor at trial, fails
to identify what those crimes were. Further, the People point out that the jury was
instructed on the elements of murder and attempted murder, the crimes listed as predicate
offenses to be used to determine a pattern of criminal activity. Conspicuously absent
from the People’s brief is any discussion of Schumacher’s actual testimony about the
predicate offenses, including that he was not asked to identify the crimes for which Bruno
and Torrez were convicted. Nor is there any argument that Schumacher’s general
description of Bruno and Torrez’s assaultive conduct (which included throwing a trash
can lid and two shootings) was sufficient to show they committed either of the only two
potential predicates (murder and attempted murder) actually set forth in the jury
instruction. Instead, the People assert any error is necessarily harmless because
defendants never challenged that the Norteños constitute a criminal street gang. This
argument ignores the fundamental duty of the prosecution to prove every element of the
17
crimes and enhancements charged beyond a reasonable doubt. (See People v. Belton
(1979) 23 Cal.3d 516, 520.) Defendants “at the outset mounted the most complete
challenge possible” to the gang enhancements and special circumstance; they demanded a
trial. (People v. Rodriguez (1998) 17 Cal.4th 253, 262.) “[D]efendant[s] could not waive
[their] right to challenge the sufficiency of the evidence on which the allegation was
found true until it was found true and, then, only by failing to file a timely notice of
appeal. In this, however, [they] did not fail.” (Ibid.)
The charged offenses may also be used to establish a gang’s pattern of criminal
activity. (People v. Loeun (1997) 17 Cal.4th 1, 10-11.) The trial court told the jury: “If
you find the defendant guilty of a crime in this case, you may consider that crime in
deciding whether one of the group’s primary activities was commission of that crime and
whether it’s -- a pattern of criminal gang activity has been proved.”
The People concede the current offenses can constitute only one predicate offense.
The predicate offenses must be committed on separate occasions or by two or more
people. (§ 186.22, subd. (e).) Here, all the current offenses were committed on one
occasion and only Vigel was a direct perpetrator. Bassett’s act of aiding and abetting
does not constitute a separate predicate offense. (People v. Zermeno (1999) 21 Cal.4th
927, 931-932.)
The questions we are left with, then, is whether Schumacher’s testimony about the
predicate offenses was sufficient to establish a second predicate offense of murder or
attempted murder, and, correspondingly, whether the jury instructions as given supplied
the jury with sufficient information to so find.
Schumacher did not testify that any of the victims of the crimes perpetrated by
Bruno or Torrez died, so there is no evidence to support a predicate offense of murder.
There is, however, sufficient evidence from which the jury could find attempted murder.
Schumacher testified Torrez’s cousin beat someone believed to be a snitch. Torrez then
stepped from the crowd and shot this victim multiple times in the stomach while the
18
victim was on the ground. From this description of the crime, the jury could infer Torrez
was at close range and by firing multiple times intended to kill his victim. “[T]he act of
purposefully firing a lethal weapon at another human being at close range, without legal
excuse, generally gives rise to an inference that the shooter acted with express malice.”
(People v. Smith (2005) 37 Cal.4th 733, 742 (Smith); also People v. Silva (2001)
25 Cal.4th 345, 369 [“multiple shotgun wounds inflicted on an unarmed and defenseless
victim who posed no threat to defendant--is entirely consistent with a premeditated and
deliberate murder”]; People v. Lashley (1991) 1 Cal.App.4th 938, 945 [firing a single
gunshot “toward the victim at a range and in a manner that could have inflicted a mortal
wound had the bullet been on target is sufficient to support an inference of intent to
kill”].)
Defendants contend the jury was not instructed on the elements of attempted
murder as it related to the predicate offenses. They are correct that the instruction on
predicate offenses did not include the elements of attempted murder. While the jury was
instructed on the elements of attempted murder as one of the current offenses, defendants
stress the instruction stated it applied to the charged counts of attempted murder and
included the names of the victims of those charges. Although this is also correct, we find
no prejudicial error in failing to instruct on the elements of attempted murder as it relates
to the predicate offenses. We consider the correctness of jury instructions based on the
entire charge to the jury and the absence of an essential element in one instruction may be
cured when it is supplied by another instruction. (People v. Musselwhite (1998)
17 Cal.4th 1216, 1248.) Here, considering the jury instructions as a whole, the jury was
adequately instructed on the elements of attempted murder. Schumacher’s testimony
provided sufficient evidence from which the jury could find Torrez committed that crime,
thus establishing the second predicate offense for a pattern of criminal activity.
Sufficient evidence supports the gang enhancements and the gang special circumstance.
19
III
Gang Expert’s Reliance on Hearsay
Vigel contends the trial court erred in permitting Schumacher to opine that Vigel
was a gang member based on unreliable hearsay. He contends the hearsay statement was
unreliable because it referred to a declaration of gang membership that could not be
definitively attributed to him.
A. Background
In the second trial, Vigel moved to exclude evidence of a statement made by
Regina Murrti about a birthday party in late July 2007. At that party, Murrti heard Vigel
or his brother Sam say “I am here representing Oak Park.” Schumacher intended to rely
on this statement as part of the basis of his opinion that Vigel was a member of the
Norteño street gang.
The trial court found neither the Fifth nor Sixth Amendment was implicated by
admission of this statement; it was the type of hearsay on which an expert could rely. On
cross-examination, the defense could point out the statement was not necessarily
attributed to Vigel.
Schumacher testified that in his opinion Vigel was a member of the Norteño
criminal street gang. He based his opinion in part on Vigel’s repeated contact with
validated or admitted gang members, and discussed two such incidents. The second
incident occurred in 2007 at a family birthday party in West Sacramento that Vigel
attended with his brother. One of the partygoers overheard Vigel or his brother tell
someone they were there representing Oak Park. Vigel became intoxicated and started a
fight, so he was asked to leave. Vigel and his brother left, but they returned with three
others, two of whom were identified Norteño gang members. This group assaulted the
head of the household, and then led the police on a high-speed pursuit. The group’s
vehicle was found abandoned in Oak Park. No charges were filed in connection with this
incident.
20
B. The Law
“Expert testimony in the form of an opinion may be based on hearsay or facts
outside the personal knowledge of the expert.” (People v. Harris (2013) 57 Cal.4th 804,
847; Evid. Code, § 801, subd. (b).) However, “an expert may not under the guise of
stating reasons for an opinion bring before the jury incompetent hearsay evidence.”
(People v. Price (1991) 1 Cal.4th 324, 416.)
“Because an expert’s need to consider extrajudicial matters, and a jury’s need for
information sufficient to evaluate an expert opinion, may conflict with an accused’s
interest in avoiding substantive use of unreliable hearsay, disputes in this area must
generally be left to the trial court’s sound judgment.” (People v. Montiel (1993) 5 Cal.4th
877, 919).) A trial court may cure a hearsay problem by a limiting instruction, or by
excluding the evidence as irrelevant, unreliable, or potentially prejudicial under Evidence
Code section 352. (Montiel, at p. 919.)
C. Analysis
Schumacher relied on several factors in concluding Vigel was a gang member,
including Vigel’s prior admissions, pictures of him throwing gang signs, his contact with
gang members, and his commission of gang-related offenses. “A gang expert’s overall
opinion is typically based on information drawn from many sources and on years of
experience, which in sum may be reliable.” (People v. Gonzalez (2006) 38 Cal.4th 932,
949.) Vigel did not object to this other evidence, which is sufficient alone to support
Schumacher’s opinion. Further, the evidence about the birthday party was admitted to
show Vigel had contact with gang members, one factor in determining that he was a gang
member. Even assuming it was his brother, not him, who claimed to represent Oak Park,
the claim demonstrated Vigel’s close contact with gang members. In any event, the
affiliation was clearly shown because Vigel returned to the party with two other gang
members and assaulted someone.
21
The trial court did give a limiting instruction just before this portion of
Schumacher’s testimony, at Bassett’s request. The instruction told the jury evidence of
gang activity could be used only to prove gang-related crimes and enhancements and not
as evidence of bad character or disposition to commit crimes. “In the absence of
evidence to the contrary, we assume the jury followed this instruction. [Citation.]”
(People v. Lucas (2014) 60 Cal.4th 153, 321.)
There was no reason to exclude the evidence as unduly prejudicial under Evidence
Code section 352. “ ‘[E]vidence should be excluded as unduly prejudicial when it is of
such nature as to inflame the emotions of the jury, motivating them to use the
information, not to logically evaluate the point upon which it is relevant, but to reward or
punish one side because of the jurors’ emotional reaction. In such a circumstance, the
evidence is unduly prejudicial because of the substantial likelihood the jury will use it for
an illegitimate purpose.’ ” (People v. Doolin (2009) 45 Cal.4th 390, 439.) In light of all
the other (overwhelming) evidence showing Vigel’s gang membership--the rest of
Schumacher’s testimony, including that Vigel had admitted twice that he was a gang
member, Besa’s statements to officers about her concern due to Vigel’s gang
membership, and evidence that Vigel shouted his gang affiliation before shooting--it is
inconceivable that evidence of what Murrti reported was said at the party inflamed the
jury against Vigel.
IV
Gang Expert Testimony that Bassett Acted in Association with Gang
Bassett contends the trial court erred in admitting, over her objection,
Schumacher’s testimony that although Bassett was not an active gang member, her
actions the night of the shooting were done in association with the Norteño street gang.
She contends the jury was as competent as the expert to determine what Bassett knew and
whether her conduct was in association with a gang.
22
A. Background
Schumacher first testified Bassett was not an active member of the Norteños.
Over Bassett’s objection of improper opinion, Schumacher then testified her actions
surrounding the shooting were done in association with the Norteño street gang. The
bases of his opinion were her various statements about her boyfriend being a Norteño and
that he would retaliate or “fuck you up.” In Schumacher’s opinion, these statements
showed Bassett “had a fairly intimate knowledge that her boyfriend was an active
Norteno gang member.”
Bassett moved for a mistrial, contending Schumacher had improperly testified to
Bassett’s state of mind. The court denied the motion.
The prosecutor then asked Schumacher a hypothetical question that closely
tracked the evidence in this case and asked, “In your expert opinion, did the girlfriend
commit the act in association with the criminal street gang Nortenos?” Schumacher said
yes. His opinion was based on the girlfriend’s statements at the party about her boyfriend
being a Norteño. Further, Schumacher opined that the acts of picking up the boyfriend,
driving him to the party, being present while he fired shots and shouted his gang set, and
then driving him away were all “done in association with a Norteno gang member who is
part of a larger Norteno gang set.”
B. The Law
“California law permits a person with ‘special knowledge, skill, experience,
training, or education’ in a particular field to qualify as an expert witness (Evid. Code,
§ 720) and to give testimony in the form of an opinion (id., § 801). Under Evidence
Code section 801, expert opinion testimony is admissible only if the subject matter of the
testimony is ‘sufficiently beyond common experience that the opinion of an expert would
assist the trier of fact.’ (Id., subd. (a).) The subject matter of the culture and habits of
criminal street gangs . . . meets this criterion.” (People v. Gardeley (1996) 14 Cal.4th
605, 617; see also id. at p. 619 [expert opinion that described attack would be “gang-
23
related activity”].) The prosecution may use hypothetical questions that track the
evidence, even if only “thinly disguised,” to establish that the crime was gang related.
(People v. Vang (2011) 52 Cal.4th 1038, 1045.)
“[A]lthough expert testimony is generally inadmissible on topics ‘so common’ that
jurors of ordinary knowledge and education could reach a conclusion as intelligently as
the expert, an expert may testify on a subject about which jurors are not completely
ignorant. [Citations.] In determining the admissibility of expert testimony, ‘the pertinent
question is whether, even if jurors have some knowledge of the subject matter, expert
opinion testimony would assist the jury.’ [Citations.]” (People v. Lindberg (2008)
45 Cal.4th 1, 45.)
“When expert opinion is offered, much must be left to the trial court’s discretion.”
(People v. Carpenter (1997) 15 Cal.4th 312, 403.) “The trial court has broad discretion
in deciding whether to admit or exclude expert testimony [citation], and its decision as to
whether expert testimony meets the standard for admissibility is subject to review for
abuse of discretion. [Citations.]” (People v. McDowell (2012) 54 Cal.4th 395, 426)
C. Analysis
We find no abuse of discretion in admitting Schumacher’s opinion that Bassett
acted in association with the gang. Numerous cases have found the purpose and intent
elements of a gang enhancement are usually beyond common knowledge and thus
properly are the subject of expert testimony. (E.g., People v. Garcia (2007)
153 Cal.App.4th 1499, 1512–1513; People v. Zepeda (2001) 87 Cal.App.4th 1183, 1207-
1209; People v. Valdez (1997) 58 Cal.App.4th 494, 507-509.) “Since at least 1980, our
courts have recognized that evidence of gang sociology and psychology is beyond
common experience and thus a proper subject for expert testimony. [Citations.]”
(People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1550.) Schumacher testified to this
sociology and psychology. In his experience, girlfriends of gang members were proud to
be with a gang member. They liked the transferred respect and notoriety that came from
24
being connected to a gang member. Bassett used her association with Vigel--and,
through him, used her association with his gang--to instill fear into the other partygoers
the night of the shooting. Ultimately, due to Bassett’s actions in making sure Vigel
arrived at the party to help her exact her revenge, that fear proved justified.
V
Separate Juries
Vigel contends the trial court erred in denying his motion for a separate jury in the
first trial.5 He contends he needed a separate jury to prevent Bassett’s statements from
prejudicing him. He argues that while her statements were admitted only against her, to
show her state of mind, and a limiting instruction was given, it was impossible for the
jury to refrain from considering these statements for the truth of the matter asserted--that
her boyfriend was a gang member and she would get him to shoot everyone--against him,
particularly since the People used these statements for just that purpose in closing
argument. He contends the error was prejudicial because without Bassett’s statements,
the jury could have found him guilty of manslaughter on a heat of passion theory.
A. Background
Before the first trial, Vigel moved for separate jury, contending that he would be
unable to confront Bassett about her statements. The trial court denied the motion. In a
lengthy and detailed ruling, the trial court found: Bassett’s statements were not
testimonial under Crawford v. Washington (2004) 541 U.S. 36 [158 L.Ed.2d 177]
(Crawford); the statements were admissible under Evidence Code section 1250, the state
of mind exception to the hearsay rule, which was a firmly rooted hearsay exception
(People v. Morales (1989) 48 Cal.3d 527, 552, overruled on other grounds in People v.
Williams (2010) 49 Cal.4th 405, 459); the statements, made in a casual setting, were
5 In the second trial, Vigel advocated for a single jury.
25
trustworthy; and the court would give CALCRIM No. 305, a limiting instruction. The
court also found the statements were against Bassett’s penal interest, as she stated her
intent to aid and abet a shooting. Finally, the court found the statements were admissible
as hearsay upon which the gang expert could rely in forming his opinion relative to the
gang enhancements.
The People elicited testimony from witnesses that Bassett said her boyfriend was a
Norteño gang member, and that after she was struck by McDaniel, she threatened to have
Vigel shoot everyone. The court repeatedly admonished the jury that these statements
could be used only against Bassett.6 The court instructed the jury, “You have heard
evidence that each defendant made statements out of court and out of the presence of the
other defendant. You may consider that evidence only against the defendant who made
the statement.”
In closing argument, the People argued that Bassett said exactly what she was
going to do; it was her choice to get her “muscle” and her “loaded weapon,” that is,
Vigel. Besa tried to stop her because she knew Vigel was a Norteño and what he was
capable of doing. The People stressed that Bassett made true on her threats. In rebuttal,
the People again stressed that Bassett told people before the shooting what she was going
to do. Neither defendant objected to these arguments.
B. The Law
The Sixth Amendment of the United States Constitution guarantees that “[i]n all
criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the
witnesses against him.” (U.S. Const., 6th Amend.) Prior to Crawford, the test for
6 We note that if the statements were properly admissible as statements against penal
interest, they would be admissible against Vigel as well as Bassett. (People v. Acero
(2011) 195 Cal.App.4th 556, 576-577; People v. Cervantes (2004) 118 Cal.App.4th 162,
175-176.)
26
confrontation clause compliance focused on whether the statement, made out of court by
an unavailable speaker, bore adequate indicia of reliability because it either fell within a
“firmly rooted hearsay exception” or bore “particularized guarantees of trustworthiness.”7
(Ohio v. Roberts (1980) 448 U.S. 56, 66 [65 L.Ed.2d 597, 608].)
In Crawford, the high court rejected the rule of Roberts; instead, it held that the
right of confrontation applies only to out-of-court testimonial statements, and that such
statements are admissible at trial only when the witness is unavailable and the defendant
had a prior opportunity to cross-examine the witness. (Crawford, supra, 541 U.S. at
pp. 68-69 [158 L.Ed.2d at p. 203].) Subsequently, the court articulated the corresponding
rule that the confrontation clause does not apply to nontestimonial hearsay. (See Whorton
v. Bockting (2007) 549 U.S. 406, 420 [167 L.Ed.2d 1, 13]; Davis v. Washington (2006)
547 U.S. 813, 821-822 [165 L.Ed.2d 224, 236-237].) Testimonial statements “have two
critical components. First, to be testimonial the statement must be made with some
degree of formality or solemnity. Second, the statement is testimonial only if its primary
purpose pertains in some fashion to a criminal prosecution.” (People v. Dungo (2012)
55 Cal.4th 608, 619.)
7 There was a special rule for out-of-court statements by a non-testifying codefendant.
In Bruton v. United States (1968) 391 U.S. 123 [20 L.Ed.2d 476], the United States
Supreme Court held that the introduction of a confession of a defendant that implicates a
codefendant violates the codefendant’s constitutional right of cross-examination even if
the jury is instructed to disregard the confession in determining the codefendant’s guilt or
innocence. (Id. at p. 137 [20 L.Ed.2d at p. 485].) The court recognized that “where the
powerfully incriminating extrajudicial statements of a codefendant, who stands accused
side-by-side with the defendant, are deliberately spread before the jury in a joint trial,”
that “the risk that the jury will not, or cannot, follow instructions is so great, and the
consequences of failure so vital to the defendant, that the practical and human limitations
of the jury system cannot be ignored.” (Id. at pp. 135-136 [20 L.Ed.2d at pp. 484-485].)
27
C. Analysis
Vigel concedes that Bassett’s statements are not testimonial. Given that
concession, there is no confrontation clause violation, which was the basis of Vigel’s
motion for separate juries. (See People v. Blacksher (2011) 52 Cal.4th 769, 813.)
Consequently, the only issue we need to decide is whether Bassett’s statements are
admissible under state evidentiary law.
Vigel focuses on the trial court’s finding that the statements were admissible for
the nonhearsay purpose of showing Bassett’s state of mind. Evidence Code section 1250,
subdivision (a)(1) allows the admission of a statement offered to prove the declarant’s
state of mind “at that time or at any other time when it is itself an issue in the action.”
Here Bassett’s state of mind was at issue, specifically her intent because she was charged
as an aider and abettor. This state of mind exception to the hearsay rule is inapplicable
“if the statement was made under circumstances such as to indicate its lack of
trustworthiness.” (Evid. Code, § 1252.) “ ‘ “The decision whether trustworthiness is
present requires the court to apply to the peculiar facts of the individual case a broad and
deep acquaintance with the ways human beings actually conduct themselves in the
circumstances material under the exception. Such an endeavor allows, in fact demands,
the exercise of discretion.” ’ [Citation.] ‘To be admissible under Evidence Code section
1252, statements must be made in a natural manner, and not under circumstances of
suspicion, so that they carry the probability of trustworthiness. Such declarations are
admissible only when they are “ ‘made at a time when there was no motive to deceive.’ ”
[Citation.]’ ” (People v. Ervine (2009) 47 Cal.4th 745, 778-779.)
Vigel contends Bassett’s statements are not trustworthy “where [he] is concerned.”
He argues he was not present, did not hear the statements, and “[t]hey could in no way be
construed as [his] adoptive admissions.” That is not the test for trustworthiness under
Evidence Code section 1252; the test focuses only on the circumstances when the
statements were made, not whether a defendant has adopted the content of the statement.
28
Vigel does not contend the circumstances were such as to make the statements
untrustworthy.
The trial court found the statements were trustworthy, as they were made
voluntarily in a social setting with no thought of any legal use. We review this finding
for abuse of discretion. (People v. Edwards (1991) 54 Cal.3d 787, 820; People v. Ortiz
(1995) 38 Cal.App.4th 377, 386.) Vigel has failed to show the trial court abused its
discretion in finding the statements were trustworthy, and thus has failed to demonstrate
an abuse of discretion in admitting the statements under the state of mind hearsay
exception.
Vigel’s main contention appears to be that the People improperly used Bassett’s
statements for the truth of the matter she asserted, and against him, rather than simply
against Bassett to show her state of mind. He bases this contention on the People’s
closing arguments, which stressed that Bassett’s threats outlined exactly what she was
going to do and that she and Vigel carried through on her threats. Vigel argues the
People used Bassett’s statements as evidence he was a gang member and that he would
avenge Bassett. He contends the People’s argument relied on Bassett’s statements to
establish his actions and his premeditation and deliberation.
By failing to object at trial, Vigel has forfeited any contention that such argument
was improper. (People v. McDowell, supra, 54 Cal.4th at p. 436.) Vigel responds he
should not be required to interrupt argument to renew his objection to the in limine ruling
denying his motion for a separate jury. He argues the People’s improper use of the
evidence was foreseeable and could--and should--have been prevented by granting his
motion for a separate jury. The proper objection during argument, however, was to the
argument, not to earlier rulings. To the extent the People’s argument was improper (a
conclusion we do not reach), it was incumbent upon Vigel to object.
Further, any error in the People’s closing argument was harmless. First, the trial
court instructed the jury that the evidence of Bassett’s statements was to be used only
29
against her and admonished the jury about this limited use when the evidence was
received. We presume the jury understood and followed the instructions. (People v.
Yeoman (2003) 31 Cal.4th 93, 139.) Also, there was ample evidence to convict Vigel of
premeditated and deliberate murder and attempted murder. Vigel returned with Bassett
to the Sleeper residence after several phone calls between the two, giving him time to
consider his actions. He took his gun, supporting the inference that he planned a violent
encounter. (See People v. Marks (2003) 31 Cal.4th 197, 230.) After he was told
McDaniel, presumably perceived by him as the offending party, was not there, he did not
leave. Instead, he announced “Oak Park, 10th Avenue” and fired multiple times, killing
one victim with four shots to her body and wounding three others with multiple shots.
Vigel then fled.
VI
Admission of Photographs
Defendants contend the trial court erred in admitting into evidence 22 photographs
showing the injuries to the four victims. There are photographs of Freeseha both at the
scene and from the autopsy, showing the bullet holes in her back and head; and
photographs of Benetti, Hughes, and Escargega in the hospital, showing their injuries and
the various medical tubing and equipment used. Vigel contends the photographs were
cumulative and prejudicial and that one photograph per victim would have been
sufficient. Bassett joins the argument.
At the first trial, Bassett asked the court to exercise its discretion to limit
photographic evidence; Vigel joined this motion. The trial court excluded one autopsy
photograph showing bullet holes in Freeseha’s back and buttocks, as cumulative. The
court admitted the remaining photographs, finding them not unduly graphic and relevant
to show the injuries and assist the jury in evaluating the testimony of witnesses, including
the forensic pathologist. At the second trial, defendants again objected to admitting all
the photographs. The trial court found the photographs relevant to show the spread of
30
gunfire and to support the great bodily injury enhancements. It found their probative
value clearly outweighed their prejudicial effect. The court noted the photographs were
not as graphic as those routinely shown on television shows such as CSI.
“The admission into evidence of photographs lies within the trial court’s discretion
and will not be disturbed absent an abuse of that discretion. [Citation.]” (People v.
Rountree (2013) 56 Cal.4th 823, 852.) A trial court has broad discretion to admit
photographs “in the face of a claim that they are unduly gruesome or inflammatory.
[Citation.]” (People v. Wilson (1992) 3 Cal.4th 926, 938.) “ ‘[M]urder is seldom pretty,
and pictures, testimony and physical evidence in such a case are always
unpleasant . . . .’ ” (People v. Pierce (1979) 24 Cal.3d 199, 211, quoting People v. Long
(1974) 38 Cal.App.3d 680, 689.) “[A] court may admit even ‘gruesome’ photographs if
the evidence is highly relevant to the issues raised by the facts, or if the photographs
would clarify the testimony of a medical examiner.” (People v. Coleman (1988)
46 Cal.3d 749, 776.)
As did our Supreme Court in People v. Ramirez (2006) 39 Cal.4th 398 at page
454, we find the photographs at issue “are gruesome because the charged offenses were
gruesome, but they did no more than accurately portray the shocking nature of the
crimes.” Here, as each trial court found, the photographs were very probative, showing
that Freeseha was shot multiple times in the back and the grave injuries the other three
victims suffered. At both trials, the trial court carefully exercised its discretion before
admitting the photographs, weighing the probative value against the possible prejudicial
effect. We have reviewed the photographs and find they are not unduly shocking or
gruesome. It was not an abuse of discretion to admit them.
VII
Admission of Vigel’s Prior Convictions
Bassett contends the second trial court erred in permitting the People to use
Vigel’s convictions from the first trial to impeach his testimony given in the first trial
31
(and subsequently read to the jury in his second trial). Bassett introduced Vigel’s
testimony in the second trial and now contends the evidence of Vigel’s convictions
should have been excluded under Evidence Code section 352 because they were of
minimal probative value as they did not involve dishonesty. Further, she contends that by
sanitizing his convictions to characterize them as three prior felony convictions involving
moral turpitude in the past five years, the evidence was confusing and prejudicial because
the jury may have believed that Vigel had convictions in addition to those arising from
this case.8
A. Background
In the second trial, Bassett moved to admit Vigel’s testimony from the first trial if
he exercised his right not to testify. The People argued that Vigel’s felony convictions in
the first trial could be used to impeach his prior testimony. Bassett objected, arguing that
indicating to the jury that Vigel had been convicted in this case would lessen the
prosecution’s burden of proof as to Bassett. Later, the trial court ruled Vigel’s priors
could be used for impeachment, but that they would be sanitized so the jury would not
know they were from this case. The People could introduce evidence that Vigel had been
convicted of three felonies involving moral turpitude in the past five years. Defendants’
objection to this ruling was preserved. At the People’s request, and with no procedural
objection from the defense, the trial court took judicial notice of Sacramento County
court records showing that Vigel had been convicted of three felony convictions within
the past five years and those convictions were for crimes of moral turpitude.
8 Although Vigel joined in Bassett’s contention on appeal, he did not make any separate
arguments about how the alleged error in admitting his sanitized convictions from the
first trial may have prejudiced the jury’s consideration of the charges against him in the
second trial. “An appellate court is not required to examine undeveloped claims, nor to
make arguments for parties.” (Paterno v. State of California (1999) 74 Cal.App.4th 68,
106.) We will not make his arguments for him.
32
B. The Law
Generally, “all relevant evidence is admissible.” (Evid. Code, § 351.) A felony
conviction involving moral turpitude may suggest a willingness to lie and thus is
probative to impeach a witness. (See People v. Wheeler (1992) 4 Cal.4th 284, 295-296
(Wheeler); People v. Castro (1985) 38 Cal.3d 301, 314-315 (Castro).) Section 28,
subdivision (f) of article I of the California Constitution provides: “Any prior felony
conviction . . . shall . . . be used without limitation for purposes of impeachment . . . .” In
Castro, supra, 38 Cal.3d 301, our Supreme Court held that trial courts retain their
discretion under Evidence Code section 352 to bar impeachment with felony convictions
that necessarily involve moral turpitude when their probative value is substantially
outweighed by their prejudicial effect. (People v. Collins (1986) 42 Cal.3d 378, 381.)
A trial court may exclude evidence under Evidence Code section 352 if its
probative value is substantially outweighed by a substantial danger of undue prejudice or
confusion of issues. “When determining whether to admit a prior conviction for
impeachment purposes, the court should consider, among other factors, whether it reflects
on the witness’s honesty or veracity, whether it is near or remote in time, whether it is for
the same or similar conduct as the charged offense, and what effect its admission would
have on the defendant’s decision to testify. [Citations.]” (People v. Clark (2011)
52 Cal.4th 856, 931.)
We review a trial court’s ruling under Evidence Code section 352 for an abuse of
discretion. (People v. Lucas (1995) 12 Cal.4th 415, 449.)
C. Analysis
We find no abuse of discretion in the trial court’s decision to admit Vigel’s prior
convictions for impeachment. Although the convictions occurred after Vigel testified, it
is the criminal conduct, not the fact of conviction, that is relevant on the issue of
credibility. (Wheeler, supra, 4 Cal.4th at p. 299.) The Clark factors support admitting
the priors: the convictions were for crimes of moral turpitude and thus reflected on
33
Vigel’s honesty or veracity; they were not remote; although they involved the same
crimes before the jury, the jury was not apprised of that fact; and the record is devoid of
evidence that admission of the priors had any effect on Vigel’s willingness to testify or
Bassett’s use of that testimony. To exclude Vigel’s priors would have given his prior
testimony “ ‘ “a false aura of veracity.” ’ ” (People v. Hinton (2006) 37 Cal.4th 839,
888.)
Bassett contends the jury already knew of Vigel’s willingness to “do evil” because
he admitted that he owned a gun, took it to the Sleeper residence, and fired multiple
times, striking the victims. Therefore, she argues, admitting the priors was unnecessary.
To the extent we accept this argument, it follows that admission of the priors did not
prejudice Bassett. Bassett claims the jury was likely to reject Vigel’s testimony that
Bassett did not know of his gun if the jury believed (due to hearing of his criminal
convictions) that he was “an evil person prone to criminal acts and likely to possess a gun
and [Bassett] knew it.” It is difficult to imagine how hearing that Vigel had committed
past crimes could convince the jury that Vigel was evil or prone to violence to a greater
extent than did the evidence of his current crimes, which, as Bassett points out, amply
showed his willingness to “do evil.”
VIII
Instructional Error: Kill Zone Theory
Bassett contends the trial court erred in the second trial by instructing on the “kill
zone” theory. She contends there is no evidentiary support for this instruction, and
therefore the convictions for the attempted murder of Hughes and Escarcega must be
reversed. Vigel joins in this contention.
A. The Instruction
One of the theories the People relied upon to prove the attempted murder of
Hughes and Escarcega was the kill zone theory. The trial court instructed the jury: “A
34
person may intend to kill a specific victim or victims and at the same time intend to kill
everyone in a particular zone of harm or kill zone.
“In order to convict defendant of the attempted murder of [Hughes] and
[Escarcega], the People must prove that the defendant not only intended to kill [Benetti]
but also either intended to kill [Hughes] and [Escarcega] or intended to kill everyone
within the kill zone.
“If you have a reasonable doubt whether the defendant intended to kill [Hughes]
and [Escarcega] or intended to kill [Benetti] by killing everyone in the kill zone, then you
must find the defendant not guilty of attempted murder of [Hughes] and [Escarcega].”
B. The Law
“[T]he trial court must instruct on the general principles of law applicable to the
case,” which means the court “must give instructions on every theory of the case
supported by substantial evidence . . . .” (Young, supra, 34 Cal.4th at p. 1200.)
“Evidence is ‘substantial’ only if a reasonable jury could find it persuasive. [Citation.]”
(Ibid.) In determining whether an instruction should be given, the court does not weigh
the credibility of the evidence. (Ibid.) However, “[i]t is error to give an instruction
which, while correctly stating a principle of law, has no application to the facts of the
case.” (People v. Guiton (1993) 4 Cal.4th 1116, 1129.)
We apply the de novo standard of review to claims of instructional error.
(People v. Manriquez (2005) 37 Cal.4th 547, 581.)
Where intent to kill is at issue in murder, it may be proven through the doctrine of
transferred intent. “ ‘Under the classic formulation of California’s common law doctrine
of transferred intent, a defendant who shoots with the intent to kill a certain person and
hits a bystander instead is subject to the same criminal liability that would have been
imposed had “ ‘the fatal blow reached the person for whom intended.’ ” [Citation.] In
such a factual setting, the defendant is deemed as culpable as if he had accomplished
35
what he set out to do.’ [Citation.]” (People v. Bland (2002) 28 Cal.4th 313, 320-321
(Bland).)
“Attempted murder requires the specific intent to kill and the commission of a
direct but ineffectual act toward accomplishing the intended killing.” (People v. Superior
Court (Decker) (2007) 41 Cal.4th 1, 7.) The doctrine of transferred intent, however, does
not apply to inchoate crimes such as attempted murder. (Bland, supra, 28 Cal.4th at
pp. 317, 327.) “The conclusion that transferred intent does not apply to attempted murder
still permits a person who shoots at a group of people to be punished for the actions
towards everyone in the group even if that person primarily targeted only one of them.”
(Id. at p. 329.) A person who shoots at a group of people, primarily targeting only one of
them, may be found guilty of attempting to murder everyone in the group, if the person
also, concurrently, intended to kill others within the “ ‘kill zone.’ ” (Id. at pp. 329-330.)
“[A] shooter may be convicted of multiple counts of attempted murder on a ‘kill
zone’ theory where the evidence establishes that the shooter used lethal force designed
and intended to kill everyone in an area around the targeted victim (i.e., the ‘kill zone’) as
the means of accomplishing the killing of that victim. Under such circumstances, a
rational jury could conclude beyond a reasonable doubt that the shooter intended to kill
not only his targeted victim, but also all others he knew were in the zone of fatal harm.
[Citation.]” (Smith, supra, 37 Cal.4th at pp. 745-746.)
C. Analysis
Bassett contends that Hughes and Escarcega were not in Benetti’s kill zone or
immediate vicinity. She argues that Vigel changed the direction in which he fired after
shooting Benetti. We find that there is evidence from which the jury could conclude that
Hughes and Escarcega were in Benetti’s kill zone.
Benetti testified he had stepped back towards the rear of the car before Vigel fired
and Vigel had to aim the gun backwards to shoot him. If Vigel had fired straight ahead,
Benetti testified, he would have fired into the garage. Thus, at the first shot, Benetti was
36
not in the same line of fire as those in the garage. Benetti, however, did not stay in the
same place once he was shot. He moved toward the front of the car and lay down in
some grass next to the driveway. Benetti continued to hear gunfire. He was shot three
more times between the first shot when he was at the rear of the car and when he was on
the grass. Once he was at the grass, the gunfire continued. When it stopped, the car left.
From this evidence, the jury could conclude that Vigel intended to kill Benetti by
firing a gun at him at close range. (Smith, supra, 37 Cal.4th at p. 741.) The jury could
further conclude that Vigel continued to fire at Benetti as Benetti passed by the passenger
window (perhaps then striking Benetti’s left arm), at which point the garage was behind
Benetti. It was this gunfire, that continued as Benetti staggered to the grass, that struck
Hughes and Escarcega. This evidence is sufficient to show that Hughes and Escarcega
were in the kill zone around Benetti and supports giving the kill zone instruction.
IX
Instructional Error: Natural and Probable Consequence of Conspiracy
Bassett contends the second trial court erred by instructing the jury that it could
find the shootings were the natural and probable consequence of an uncharged conspiracy
between Bassett and Vigel to assault McDaniel. She contends the evidence did not
support this theory because any conspiracy ended before Vigel began shooting when
Vigel was told that McDaniel was not present. Vigel joins this contention.
A. The Instruction
In addition to arguing that Bassett was an aider and abettor, the People argued she
could also be guilty “under the legal principals of uncharged conspiracy and a natural and
probable consequence doctrine.” The People argued the jury could find a conspiracy to
assault McDaniel and that the shooting was a natural and probable consequence of that
conspiracy.
The trial court instructed the jury that the People had presented evidence of a
conspiracy to commit an assault on McDaniel. The court instructed on the law of
37
conspiracy, including as relevant here the following: “A member of a conspiracy is also
criminally responsible for any act of the member of the conspiracy if that act is done to
further the conspiracy and that act is a natural and probable consequence of the common
plan or design of the conspiracy. [¶] This rule applies even if the act was not intended as
part of the original plan. [¶] A natural and probable consequence is one that a reasonable
person would know if likely to happen if nothing unusual intervenes. [¶] In deciding
whether a consequence is natural and probable, consider all of the circumstances
established by the evidence.”
B. Analysis
Bassett does not argue that there was insufficient evidence either of a conspiracy
or that the shooting was a natural and probable consequence of that conspiracy. Instead,
her contention is that any conspiracy had ended before the shooting began (although she
did not request any instruction defining the “end” of a conspiracy). The general rule is
that a conspiracy comes to an end when the target crime of the conspiracy “ ‘is either
attained or defeated.’ ” (People v. Hardy (1992) 2 Cal.4th 86, 143.) Bassett contends the
conspiracy to assault McDaniel was “defeated” because he was not present at Sleeper’s
when Vigel and Bassett arrived. We are not persuaded.
“It is for the trier of fact -- considering the unique circumstances and the nature
and purpose of the conspiracy of each case -- to determine precisely when the conspiracy
has ended.” (People v. Saling (1972) 7 Cal.3d 844, 852.) A conspiracy does not
necessarily end merely because it is not carried out as originally planned. (See People v.
Patrick (1981) 126 Cal.App.3d 952, 966 [kidnapping conspiracy was not defeated when
police arrived; conspirators avoided defeat by pretending to abandon it, but resuming
plan later].)
Here, the jury could conclude the conspiracy continued even though either Besa or
Benetti told Vigel that McDaniel was not there and McDaniel had in fact left.
McDaniel’s absence did not necessarily defeat the conspiracy; it may have only
38
postponed or prolonged it. Vigel and Bassett could have intended to pursue McDaniel
after Vigel “shot up the place.” Unfortunately for their victims, Vigel and Bassett did not
abandon their criminal plans upon hearing that McDaniel was not there.
X
Reduction to Second Degree Murder under People v. Chiu
In a second supplemental brief, Bassett contends her first degree murder
conviction must be reduced to second degree and the special circumstance vacated. In
People v. Chiu (2014) 59 Cal.4th 155 (Chiu), our Supreme Court held, as a matter of law,
that an aider and abettor cannot be held culpable for first degree murder based on the
natural and probable consequences doctrine. Here, the jury was instructed that Bassett
could be guilty of first degree murder because she conspired with Vigel to assault
McDaniel and murder was the natural and probable consequence of that conspiracy.
Bassett contends that conspiracy is similar to aiding and abetting as a theory of vicarious
liability, so the rule of Chiu applies. Since the jury was given the option of finding guilt
based on the natural and probable consequence of a conspiracy, Bassett contends that she
can be guilty only of second degree murder. We disagree.
A. The Law
“ ‘ “A person who knowingly aids and abets criminal conduct is guilty of not only
the intended crime [target offense] but also of any other crime the perpetrator actually
commits [nontarget offense] that is a natural and probable consequence of the intended
crime.” ’ [Citations.] ‘Thus, for example, if a person aids and abets only an intended
assault, but a murder results, that person may be guilty of that murder, even if
unintended, if it is a natural and probable consequence of the intended assault.’
[Citation.]” (Chiu, supra, 59 Cal.4th at p. 161.)
“In the context of murder, the natural and probable consequences doctrine serves
the legitimate public policy concern of deterring aiders and abettors from aiding or
encouraging the commission of offenses that would naturally, probably, and foreseeably
39
result in an unlawful killing. A primary rationale for punishing such aiders and
abettors—to deter them from aiding or encouraging the commission of offenses—is
served by holding them culpable for the perpetrator’s commission of the nontarget
offense of second degree murder. [Citation.]” (Chiu, supra, 59 Cal.4th at p. 165.)
“[T]his same public policy concern loses its force in the context of a defendant’s liability
as an aider and abettor of a first degree premeditated murder” because the required
mental state of willfulness, premeditation, and deliberation is uniquely subjective and
personal. (Id. at p. 166.) “Accordingly, we hold that punishment for second degree
murder is commensurate with a defendant’s culpability for aiding and abetting a target
crime that would naturally, probably, and foreseeably result in a murder under the natural
and probable consequences doctrine. We further hold that where the direct perpetrator is
guilty of first degree premeditated murder, the legitimate public policy considerations of
deterrence and culpability would not be served by allowing a defendant to be convicted
of that greater offense under the natural and probable consequences doctrine.” (Ibid.)
“Aiders and abettors may still be convicted of first degree premeditated murder
based on direct aiding and abetting principles. [Citation.] Under those principles, the
prosecution must show that the defendant aided or encouraged the commission of the
murder with knowledge of the unlawful purpose of the perpetrator and with the intent or
purpose of committing, encouraging, or facilitating its commission. [Citation.]” (Chiu,
supra, 59 Cal.4th at pp. 166-167.)
“When a trial court instructs a jury on two theories of guilt, one of which was
legally correct and one legally incorrect, reversal is required unless there is a basis in the
record to find that the verdict was based on a valid ground. [Citations.] Defendant’s first
degree murder conviction must be reversed unless we conclude beyond a reasonable
doubt that the jury based its verdict on the legally valid theory . . . .” (Chiu, supra,
59 Cal.4th at p. 167.)
40
B. Analysis
In Chiu, the record showed the jury was deadlocked between first and second
degree murder and one juror had difficulty placing the defendant in the shoes of the
actual shooter. “These events indicate that the jury may have been focusing on the
natural and probable consequence theory of aiding and abetting and that the holdout juror
prevented a unanimous verdict on first degree premeditated murder based on that theory.
Thus, we cannot conclude beyond a reasonable doubt that the jury ultimately based its
first degree murder verdict on a different theory, i.e., the legally valid theory that
defendant directly aided and abetted the murder.” (Chiu, supra, 59 Cal.4th at p. 168.)
Here, as we explain, the record shows the jury based its first degree murder verdict
on a legally valid ground; the jury found Bassett aided and abetted first degree drive-by
shooting. Therefore, any error in the instructions is harmless beyond a reasonable doubt
in this case.9
The People offered two theories of first degree murder: premeditation and
deliberation and shooting a firearm from a motor vehicle. A drive-by shooting is first
degree murder where it is “perpetrated by means of discharging a firearm from a motor
vehicle, intentionally at another person outside of the vehicle with the intent to inflict
death.” (§ 189.) The People argued Bassett could be guilty of first degree murder either
as an aider and abettor or, under the natural and probable consequence doctrine, of an
uncharged conspiracy to assault McDaniel. The jury was instructed on the natural and
probable consequences doctrine as it related to a conspiracy.
9 Because any error is harmless, we need not address whether Chiu limits a murder
conviction to second degree when the natural and probable consequence doctrine applies
to a conspiracy rather than aiding and abetting. (See People v. Rivera (Mar. 9, 2015,
C074297) ___ Cal.App.4th ___.)
41
The jury found Bassett guilty of first degree murder of Freeseha. The jury also
found the drive-by shooting special circumstance true. Specifically, the jury found the
murder “was intentional and perpetrated by means of discharging a firearm from a motor
vehicle, intentionally at another person outside the vehicle with the intent to inflict
death.” This finding establishes beyond a reasonable doubt that the jury found Bassett
guilty as an aider and abettor of first degree drive-by murder. Bassett’s first degree
murder conviction was based on a legally valid theory.
XI
Prosecutorial Misconduct: Misstating the Law of Intent
Bassett contends the prosecutor committed misconduct by misstating the law of
intent in telling the jury that Bassett could be guilty of attempted murder if she intended
to kill McDaniel. She contends that because the information charged attempted murder
on the basis that Bassett intended to kill certain named victims, basing attempted murder
on her intent to kill McDaniel denied her notice and a reasonable opportunity to defend.
A. Background
In arguing that Bassett was guilty of attempted murder as an aider and abettor, the
People argued: “That intent to kill element is still there. We’ve talked about that in
length. Don’t have to prove that her intent to kill was as to these three specific victims or
the fourth, Mr. Benetti. [¶] Don’t have to prove that it was her specific intent to kill
either one of them. Could have been specific intent to [kill] Brian McDaniel. [¶] You
have evidence of both. Her anger directed towards him and then really everyone else at
[the] party as she’s getting in the car.”
Bassett objected, stating: “That misstates the law on aiding and abetting.” The
objection was overruled.
The People’s argument continued, stating the law was defined in CALCRIM No.
601 [premeditated attempted murder]. The People then addressed the kill zone theory.
42
B. The Law
“The standards under which we evaluate prosecutorial misconduct may be
summarized as follows. A prosecutor’s conduct violates the Fourteenth Amendment to
the federal Constitution when it infects the trial with such unfairness as to make the
conviction a denial of due process. Conduct by a prosecutor that does not render a
criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it
involves the use of deceptive or reprehensible methods to attempt to persuade either the
trial court or the jury. Furthermore, and particularly pertinent here, when the claim
focuses upon comments made by the prosecutor before the jury, the question is whether
there is a reasonable likelihood that the jury construed or applied any of the complained-
of remarks in an objectionable fashion. [Citation.]” (People v. Morales (2001)
25 Cal.4th 34, 44 (Morales).)
It is prosecutorial misconduct to misstate the applicable law during argument to
the jury. (People v. Huggins (2006) 38 Cal.4th 175, 253, fn. 21; People v. Otero (2012)
210 Cal.App.4th 865, 870.)
In considering whether a defendant was harmed by the misconduct, we examine
the prosecutor’s remarks in the context of the whole record, including arguments and
instructions. (Morales, supra, 25 Cal.4th at p. 44.) “When argument runs counter to
instructions given a jury, we will ordinarily conclude that the jury followed the latter and
disregarded the former, for ‘[w]e presume that jurors treat the court’s instructions as a
statement of the law by a judge, and the prosecutor’s comments as words spoken by an
advocate in an attempt to persuade.’ [Citation.]” (People v. Osband (1996) 13 Cal.4th
622, 717; People v. Boyette (2002) 29 Cal.4th 381, 436 [even if prosecutor misstated the
law, “the trial court properly instructed the jury on the law, and we presume the jury
followed those instructions”].)
43
C. Analysis
Because proving Bassett’s intent to kill McDaniel was insufficient to prove
attempted murder as to the three charged victims, the People were wrong to argue
otherwise, as was the trial court to overrule the objection. However, we find the error
harmless. The improper argument constitutes less than half a page of an argument
consuming over 60 pages of transcript. Elsewhere, the People correctly argued the law of
intent to kill and aiding and abetting. Bassett does not challenge that argument. More
importantly, the trial court correctly instructed the jury on the applicable law. Directly
after the portion of the argument referenced above, the People referred the jury to the
instructions. The court directed the jury that if argument conflicted with the instructions,
the jury was to follow the instructions. Bassett has not shown--and we do not find--“a
reasonable likelihood that the jury construed or applied any of the complained-of remarks
in an objectionable fashion. [Citation.]” (Morales, supra, 25 Cal.4th at p. 44.)
XII
Juror Misconduct: Elk Grove Calls
Vigel contends the verdicts were tainted by outside information that one of the
jurors received. Juror No. 7 told the other jurors that she had received “strange” phone
calls from Elk Grove, the city where the shootings occurred. Vigel contends this outside
information “tainted the verdicts” and the presumption of prejudice was not rebutted.
Bassett joins this contention.
A. Background
The afternoon before the jury in the second trial reached a verdict, the jury sent the
trial court a note. The note listed a phone number and then said: “Juror #7 mentioned
that she has been receiving strange phone calls from the above phone number. Her phone
says this phone number is in Elk Grove. We thought it prudent to mention this.”
The next morning, after the jury indicated it had reached a verdict, counsel for
Bassett requested that the court ask Juror No. 7 whether these calls influenced her
44
decision-making process and that this inquiry occur before the verdict was read. Juror
No. 7 told the court that she received these calls about twice a week from the beginning
of the trial, a total of 10 calls. She never spoke to anyone or received a message. She
declared that her vote on the verdict was not influenced by these calls. She had told the
other jurors about these calls, both the number of them and that they were from Elk
Grove. The bailiff reported that she had not heard about the calls until she was handed
the note. Upon further questioning, Juror No. 7 indicated she mentioned the calls to the
other jurors only late the previous afternoon. She did not report the calls earlier because
at first she thought it was just a wrong number, and she still thought it could be. The
court then questioned each juror individually about whether the information about the
calls influenced his or her verdict and each juror said no.
Bassett then moved for a mistrial based on Juror No. 7 violating the court’s
admonitions. Vigel joined the motion.
The trial court clarified that its admonition to the jury was to tell the bailiff only if
someone tried to contact them about this case; it was not to report anything a juror
thought could be relevant. The court found it crucial that the juror received no actual
communication and found that Juror No. 7 did nothing wrong. It denied the motion for a
mistrial.
B. The Law
“An accused has a constitutional right to a trial by an impartial jury. [Citations.]
An impartial jury is one in which no member has been improperly influenced [citations]
and every member is ‘ “capable and willing to decide the case solely on the evidence
before it” ’ [citations].” (In re Hamilton (1999) 20 Cal.4th 273, 293-294 (Hamilton).)
“A sitting juror’s involuntary exposure to events outside the trial evidence, even if not
‘misconduct’ in the pejorative sense, may require similar examination for probable
prejudice.” (Id. at pp. 294-295.) When the alleged misconduct involves an unauthorized
communication with a juror, the presumption of prejudice does not arise unless there is a
45
showing that the content of the communication was about the guilt or innocence of the
defendant. (Id. at p. 305.)
“Misconduct by a juror, or a nonjuror’s tampering contact or communication with
a sitting juror, usually raises a rebuttable ‘presumption’ of prejudice. [Citations.]”
(Hamilton, supra, 20 Cal.4th at p. 295.) The test for whether an individual verdict must
be overturned for jury misconduct or irregularity is an objective standard: the substantial
likelihood test. (Id. at p. 296.) “Any presumption of prejudice is rebutted, and the
verdict will not be disturbed, if the entire record in the particular case, including the
nature of the misconduct or other event, and the surrounding circumstances, indicates
there is no reasonable probability of prejudice, i.e., no substantial likelihood that one or
more jurors were actually biased against the defendant. [Citations.]” (Ibid.)
“A sitting juror commits misconduct by violating her oath, or by failing to follow
the instructions and admonitions given by the trial court. A lay juror cannot be expected
to conform to standards of behavior of which she has not been informed, or to make
unguided personal judgments about what the court needs to know. Her failure to do so
cannot place at risk a presumptively valid verdict.” (Hamilton, supra, 20 Cal.4th at
p. 305.)
C. Analysis
Here, no presumption of prejudice arose from the calls to Juror No. 7. The only
evidence that the calls were somehow related to this case was their regular occurrence
throughout the trial and their origination in Elk Grove. Significantly, nothing was said
and no message was left. Although defendants speculate that “a reasonable juror” could
infer that someone in Elk Grove “wanted a guilty verdict,” an inference to the contrary--
that someone wanted an acquittal--is just as likely. And neither of these inferences is
reasonable given the complete lack of communication within the calls.
The ambiguous nature of the calls is analogous to the juror situation in Hamilton.
There, in a habeas proceeding claiming jury misconduct in a capital case, a juror
46
declaration indicated that once during the guilt phase of the trial, petitioner’s sister and
her boyfriend parked in an alley behind the juror’s home, they sped away when they saw
the juror, and the juror did not report the incident to the police. (Hamilton, supra,20 Cal.4th at p. 304.) There was doubt as to whether this incident actually occurred.
(Ibid., see also fn. 24.) Our Supreme Court found no misconduct in failing to report this
incident to the trial court because the incident did not fall within the admonitions given;
the jury was told to avoid any contact with those connected to the case, not to report a
mere observation of such persons. (Id. at p. 305.) Second, there was no communication
involved. (Id. at p. 306.) Finally, even if the incident was interpreted as an improper
attempt to intimidate the juror, the objective circumstances--that the episode was brief,
isolated, and ambiguous--gave rise to “no substantial likelihood” that the incident
resulted in actual bias. (Ibid.)
We recognize there are differences between this case and Hamilton. Here, the
calls were not isolated; they continued throughout trial. Further, unlike the juror in
Hamilton, Juror No. 7 discussed the matter with other jurors. On the other hand,
however, in Hamilton it was certain that the incident involved parties related to the
petitioner. Here, the source of the calls as well as the reason for them is unknown--even
their recipient opined that the calls could be meant for another number. Moreover, to the
extent the presumption of prejudice did arise, it was rebutted. The trial court questioned
each juror about the effect this information had on his or her decision. Without
equivocation, each juror said it had none. Defendants provide no reason why we should
not accept the trial court’s credibility determination on this issue. (See In re Carpenter
(1995) 9 Cal.4th 634, 646 [appellate court accepts trial court’s credibility determinations
on juror misconduct].)
47
XIII
Juror Misconduct: Inattentive Juror
Bassett contends the trial court violated her right to due process by failing to
conduct an adequate hearing into possible misconduct by Juror No. 3. There was
evidence that this juror had been inattentive during trial and that she told another juror
she did not know what was going on in the trial. Bassett contends the trial court erred in
failing to (1) question the second juror about her conversation with Juror No. 3; (2)
question those who claimed to have seen Juror No. 3 asleep during trial; and (3) ask Juror
No. 3 about her lack of attentiveness and her comments about the same. Vigel joins this
contention.
A. Background
On the first full day of deliberations in the second trial (a Monday), Juror No. 3
told the bailiff that she needed the next day off to take her daughter on a field trip; she
had mentioned the trip during voir dire and had been told it would not be a problem. The
court conferred with the lawyers to determine the appropriate course of action: whether
to tell the juror that she had to be at trial, to give the rest of the jurors the day off as well,
or to remove the juror and replace her with an alternate juror.
Bassett moved to remove Juror No. 3 and Vigel joined the motion. Vigel’s
attorney noted Juror No. 3 had appeared inattentive during trial, often closing her eyes.
The court responded that if counsel wanted this juror removed for sleeping or being
inattentive, they should have made a motion at the time of the observation. Bassett’s
attorney then recounted information he had learned from Bassett’s mother, Lisa Boyce.
Boyce told him that on Thursday an Asian female juror left the courtroom, extremely
upset and said the case was taking too long. On Friday, this juror asked the bailiff if an
alternate could be substituted. On this Monday, Boyce said she had a conversation with
an African-American woman outside (later identified as Sharika Johnson). Boyce was on
her cell phone, mentioning that the jury was deliberating in her daughter’s case. Johnson
48
said, “that’s weird” because she had heard an Asian woman wearing a juror badge
comment she did not know what was going on because she was not paying attention
during trial. The bailiff reported to the court that Juror No. 3 had never asked for an
alternate. The court then questioned the accuracy of Boyce’s information.
The People objected to removing Juror No. 3, claiming there was not good cause.
The court agreed there was no good cause. It found the information from Johnson too
tenuous to conduct an investigation.10 The court gave the jury the following day off.
Bassett’s counsel then spoke with Johnson and learned that she had seen Juror No.
3 talking with Juror No. 9. Juror No. 3 walked by the courtroom and threw up her hand
in the direction of the courtroom, saying, “I don’t know what they were -- were even
talking about. I wasn’t paying attention.” Counsel asked that Juror No. 3 be brought in
“just to ask [the] general question about whether she’s discussed outside the jury room
anything -- made any comments outside the jury room relating to our case.” Vigel’s
counsel added that Juror No. 3 had her eyes closed frequently, consistent with someone
not paying attention. The court indicated it had watched Juror No. 3 throughout the trial
and early on she appeared to nod off. The court had the bailiff give her a cup of water.
The court said it was careful to make sure Juror No. 3 was not falling asleep. The court
declined to question the juror about her inattentiveness since it had not been raised
earlier. Bassett’s attorney then said Boyce had told him that she thought Juror No. 3 was
sleeping. Boyce’s brother made the same comment.
The trial court called Juror No. 3 in and told her it had been reported she had made
a comment in the hallway that could be interpreted as a comment about the case. The
court reminded her of the admonition not to discuss the case outside the presence of all
the other jurors and asked if she had abided by that admonition. Juror No. 3 said yes.
10 The court questioned its authority to question “some civilian out in the hallway.”
49
B. The Law
The trial court may discharge a juror who “becomes ill, or upon other good cause
shown to the court is found to be unable to perform his or her duty . . . .” (§ 1089.)
While extreme inattentiveness due to sleeping may constitute good cause to discharge a
juror, “ ‘courts have exhibited an understandable reluctance to overturn jury verdicts on
the ground of inattentiveness during trial. . . . Perhaps recognizing the soporific effect of
many trials when viewed from a layman’s perspective, these cases uniformly decline to
order a new trial in the absence of convincing proof that the jurors were actually asleep
during material portions of the trial. [Citations.]’ [Citation.]” (People v. Bradford
(1997) 15 Cal.4th 1229, 1349 (Bradford).) “A juror must not be discharged for sleeping
unless there is convincing proof the juror actually slept during trial. [Citations.]”
(People v. Bowers (2001) 87 Cal.App.4th 722, 731.)
“Once a trial court is put on notice that good cause to discharge a juror may exist,
it is the court’s duty ‘to make whatever inquiry is reasonably necessary’ to determine
whether the juror should be discharged. [Citation.]” (People v. Espinoza (1992)
3 Cal.4th 806, 821.) The decision whether to investigate the possibility of juror
misconduct rests within the sound discretion of the trial court. (People v. Ray (1996)
13 Cal.4th 313, 343.) “The court does not abuse its discretion simply because it fails to
investigate any and all new information obtained about a juror during trial.” (Ibid.) Mere
speculation that a juror might have been sleeping or inattentive is insufficient to provide
notice of good cause to discharge, and does not obligate a trial court to conduct an
inquiry. (Espinoza, at p. 821.)
C. Analysis
The alleged inattentiveness of Juror No. 3 was insufficient to require the trial court
to conduct an inquiry. The court itself had paid attention to this particular juror after
early signs of sleepiness. The court did not observe her actually sleeping. The court
could reasonably conclude that Boyce’s information, coming at the 11th hour and from
50
an interested party, was unreliable, especially after her earlier information that Juror No.
3 had spoken to the bailiff about being replaced proved unreliable. Although counsel
claimed he observed inattentiveness, and had been told the same by Boyce and her
brother, his failure to make a concomitant assertion of juror misconduct indicates an
inquiry was not required. (Bradford, supra, 15 Cal.4th at p. 1349.)
Bassett faults the court for making only a limited inquiry of Juror No. 3,
suggesting additional questions that should have been asked and additional people who
should have been questioned. The trial court’s inquiry tracked the question suggested by
Bassett’s counsel. When the court asked if there should be a further investigation based
on the statement from Johnson as to what Juror No. 3 said, counsel expressed concern
about “tainting her in any fashion.” Having both suggested and agreed to the limited
inquiry, Bassett cannot now object that it was too limited. (See People v. Rodrigues
(1994) 8 Cal.4th 1060, 1193 [where defendant both suggested and consented to court’s
responses to jury question, the claim of error forfeited].)
XIV
Sentence on Gang Enhancement
Vigel contends the trial court erred in imposing a sentence of 15 years to life for
the gang enhancement on count one, the murder charge.11 He contends the proper
sentence for a section 186.22, subdivision (b) gang enhancement where defendant
11 For the first time at oral argument, Vigel contended the section 186.22, subdivision (b)
gang enhancement did not apply to a life term without the possibility of parole, relying on
People v. Lopez (2005) 34 Cal.4th 1002. This argument is procedurally barred because
points first raised at oral argument are untimely and need not be considered. (California
Redevelopment Assn. v. Matosantos (2013) 212 Cal.App.4th 1457, 1500.) In Lopez, our
Supreme Court noted “the predecessor to section 186.22(b)(5) was understood to apply to
all lifers, except those sentenced to life without the possibility of parole.” (Lopez, at
p. 1010.) We recognize, of course, that the gang enhancement has no practical effect on a
defendant sentenced to life without the possibility of parole.
51
received a life sentence is a minimum parole eligibility of 15 years. The People respond
this minimum parole eligibility term is properly expressed as an additional sentence of 15
years to life, relying on People v. Villegas (2001) 92 Cal.App.4th 1217 (Villegas).
Section 186.22, subdivision (b) provides in relevant part: “[A]ny person who
violates this subdivision in the commission of a felony punishable by imprisonment in the
state prison for life shall not be paroled until a minimum of 15 calendar years have been
served.” Vigel was sentenced to a life sentence without the possibility of parole, so this
provision for minimum parole eligibility has no practical effect on him. It is subsumed
by the sentence of life without the possibility of parole. As our Supreme Court has noted,
“newer and more powerful sentencing laws, such as section 190, have sapped the strength
of section 186.22(b)(5).” (People v. Montes (2003) 31 Cal.4th 350, 361, fn. 14.)
Unsurprisingly, the abstract of judgment form has no provision for showing a
minimum parole eligibility date where the sentence does not provide for parole. In
sentencing Vigel on the gang enhancement attached to count one, the murder charge, the
trial court relied on Villegas, supra, 92 Cal.App.4th 1217. In Villegas, the trial court
imposed a 15-year-to-life sentence for the gang enhancement allegation under section
186.22, subdivision (b) where defendant received a life sentence for attempted
premeditated and deliberate murder. The appellate court found no error, finding the
sentence correctly set a minimum parole eligibility of 15 years. (Villegas, at pp. 1228-
1229.)
Without directly addressing Villegas, Vigel contends this approach is incorrect and
the 15-year-to-life sentence must be stricken. Vigel offers no reason--persuasive or
otherwise--why the trial court erred in following Villegas. He does not explain how a
statement of 15-year minimum parole eligibility functions differently from a 15-year-to-
life term so as to make the sentence unauthorized. Nor does he explain how changing the
abstract as he seeks will benefit him. Accordingly, Vigel has failed to show error.
52
Vigel contends the abstract must be corrected to show the proper sentence on
counts 2, 3, and 4, the attempted murder charges. For these counts, the abstract does
provide a method for showing a minimum parole eligibility term. Vigel contends that the
minimum parole eligibility of 15 years should be shown by checking box 6.a. (life with
the possibility of parole on counts 2, 3, & 4, with a minimum parole eligibility of 15
years to life) rather than showing a 15-year to life enhancement on these counts under
box 2 (enhancements). He further contends that box 7 (additional determinate term--see
CR-290.1) should not be checked because no form CR-290.1 was prepared. The People
agree to these corrections. Because all parties agree, we will direct the changes be made.
XV
Jury Determination of Restitution Fine
Defendants contend they had a right to a jury trial with regard to the restitution
fines. As to both defendants, the court imposed a $10,000 restitution fine under section
1202.4, and ordered direct victim restitution in the amount of $28,251.19. Bassett
contends these restitution fines are punishment and a victim restitution fine “could not
[be] imposed on judicially determined facts without violating the Sixth Amendment,”
citing Southern Union Co. v. United States (2012) 567 U.S. ___ [183 L.Ed.2d 318]
(Southern Union) and Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435]
(Apprendi)). Vigel joins in this argument.
In Apprendi, supra, 530 U.S. at page 490 [147 L.Ed.2d at p. 455], the United
States Supreme Court held, “Other than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt.” “[The] ‘statutory
maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely
on the basis of the facts reflected in the jury verdict or admitted by the defendant.”
(Blakely v. Washington (2004) 542 U.S. 296, 303 [159 L.Ed.2d 403, 413].) “In other
words, the relevant ‘statutory maximum’ is not the maximum sentence a judge may
53
impose after finding additional facts, but the maximum he may impose without any
additional findings.” (Id. at pp. 303-304, [159 L.Ed.2d at pp. 413-414].) In Southern
Union, supra, 567 U.S. at p.___ [183 L.Ed.2d at p. 334], the United States Supreme
Court held Apprendi applies to the imposition of criminal fines. The statutory fine
imposed in Southern Union was $50,000 for each day of violation of a federal
environmental statute and the trial court, not the jury, made a specific finding as to the
number of days the statute was violated. The United States Supreme Court held the
district court’s factual finding as to the number of days the defendant committed the
crime violated Apprendi. (Southern Union, supra, 567 U.S. at p. ___ [183 L.Ed.2d at
p. 329].)
In People v. Kramis (2012) 209 Cal.App.4th 346 (Kramis), the Second District,
Division Five held that Apprendi and Southern Union do not apply when the trial court
exercises its discretion within a statutory range, as it does when selecting a restitution
fine pursuant to section 1202.4, subdivision (b). The court explained that “ ‘Apprendi
distinguishes a “sentencing factor”—a “circumstance, which may be either aggravating
or mitigating in character, that supports a specific sentence within the range authorized
by the jury’s finding that the defendant is guilty of a particular offense”—from a
“sentence enhancement”—“the functional equivalent of an element of a greater offense
than the one covered by the jury’s guilty verdict” constituting “an increase beyond the
maximum authorized statutory sentence.” [Citation.]’ [Citation.]” (Kramis, at p. 351,
citing People v. Urbano (2005) 128 Cal.App.4th 396, 405-406.) Because the $10,000
restitution fine was within the statutory range of section 1204.4, subdivision (b),
“Apprendi and its progeny do not preclude its imposition.” (Kramis, at p. 352.)
In People v. Pangan (2013) 213 Cal.App.4th 574, the Fourth District, Division
Three held that neither Apprendi nor Southern Union applied to direct victim restitution.
The court reasoned that “direct victim restitution is not a criminal penalty. As explained
in U.S. v. Behrman (7th Cir. 2000) 235 F.3d 1049, 1054, direct victim restitution is a
54
substitute for a civil remedy so that victims of crime do not need to file separate civil
suits. It is not increased ‘punishment.’ [People v. Millard (2009) 175 Cal.App.4th 7, 35]
makes the same point in regard to California law. [Citations.] [People v. Chappelone
(2010) 183 Cal.App.4th 1159, 1184] has collected the numerous federal cases also
holding victim restitution does not constitute increased punishment for crime. [Citation.]
And we would note the restitution statute itself characterizes victim restitution awards as
civil. (See [] § 1202.4, subd. (a)(3)(B) [victim restitution ‘shall be enforceable as if the
order were a civil judgment’].)” (Pangan, at p. 585.)
We agree with the reasoning of the courts in Kramis and Pangan. Here, as in
Kramis, defendants were not entitled to a jury trial on the fines imposed pursuant to
section 1202.4, subdivision (b) because these fines were within the range prescribed by
statute. Further, as in Pagan, they were not entitled to a jury trial on the $28,251.19
award to the state victims’ restitution fund because direct victim restitution is not
increased punishment.
XVI
Parole Revocation Fine
Bassett and the People agree that the trial court erred by imposing a parole
revocation fine where there is no parole eligibility.
Section 1202.45 provided for a fine equal to the restitution fine under section
1202.4 “[i]n every case where a person is convicted of a crime and whose sentence
includes a period of parole.” (§ 1202.45, as amended by Stats. 2007, ch. 302, § 15.) The
parole revocation fine may not be imposed where defendant is sentenced to life in prison
without parole. (People v. Battle (2011) 198 Cal.App.4th 50, 63.) Here, it was. We shall
strike the fine.
Although the trial court did not orally impose a parole revocation fine on Vigel,
his abstract also shows a $10,000 parole revocation fine. We direct that the trial court
correct his abstract to delete this fine.
55
XVII
Fines and Fees
Vigel contends there are additional errors in the abstract of judgment relating to
fines and fees. Bassett does not join in this contention.
First, he contends the order for restitution in the amount of $28,251.19, pursuant to
section 1202.4, subdivision (f), should be shown as joint and several. Vigel failed to
object to the restitution order and therefore has forfeited the issue on appeal. (People v.
Tillman (2000) 22 Cal.4th 300, 303.) Further, the decision to make restitution joint and
several is a discretionary sentencing choice. (See People v. Neely (2009)
176 Cal.App.4th 787, 800.) Here, the trial court did not order this restitution to be a joint
and several obligation.
Second, the People agree the amount of Vigel’s court security fee ($120) is
incorrect. Judge Fall imposed a fee of $120 on counts 1, 2, and 5. Judge Sawtelle
imposed an additional fee of $80 on counts 3 and 4. The abstract should reflect $200 as
the court security fee.
Third, Vigel contends the court facility fee assessment is not shown on the
abstract, and the People agree. Judge Fall imposed $90 for counts 1, 2, and 5. Judge
Sawtelle imposed a fee of $60 for counts 3 and 4. The abstract should reflect $150 as the
court facilities fee.
XVIII
Cumulative Error
Bassett contends the cumulative effect of the many errors deprived her of a fair
trial. Having rejected all claims of trial error, we find no cumulative error. (People v.
Watkins (2012) 55 Cal.4th 999, 1036; People v. McKinzie (2012) 54 Cal.4th 1302, 1369.)
56
DISPOSITION
The parole revocation fine imposed on Bassett is stricken. The trial court is
directed to correct that portion of Vigel’s abstract of judgment concerning the sentence
on counts 2, 3, and 4, the parole revocation fine, and other fees in accordance with this
opinion and to prepare an amended abstract of judgment as to Bassett, and a corrected
abstract of judgment as to Vigel, and to forward certified copies to the Department of
Corrections and Rehabilitation. In all other respects, the judgments are affirmed.
DUARTE , J.
We concur:
MURRAY , Acting P. J.
HOCH , J.
57