People v. Blessett CA3 ( 2022 )

Filed 1/26/22 P. v. Blessett CA3
Review denied 5/25/22; reposted with Supreme Court order and statement
NOT TO BE PUBLISHED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 This opinion has not been certified for publication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, C074267
Plaintiff and Respondent, (Super. Ct. No. 12F01121)
v.
OPINION ON TRANSFER
ANTOINE LAMAR BLESSETT,
Defendant and Appellant.
After an argument precipitated by references to their respective gangs, the victim
Christopher Sisoukchaleun, took off his shirt to fight defendant Antoine Lamar Blessett.
Instead, defendant followed Sisoukchaleun into the street and shot him between the eyes
at nearly point-blank range with a firearm he had retrieved only moments earlier from his
pickup truck, which was parked nearby. Defendant then fired a second close-range shot,
striking Sisoukchaleun in the torso.
1
A jury found defendant guilty of first degree murder (Pen. Code, §§ 187, subd. (a),
189)1 and possession of a firearm by a felon (§ 29800, subd. (a)(1)). The jury also found
true enhancement allegations that defendant personally used a firearm and proximately
caused death or great bodily injury (§ 12022.53, subd. (d)), that he personally used a
firearm in the commission of a felony (§§ 12022.5, subd. (a), 12022.53, subd. (b)), and
that he committed the murder for the benefit of a criminal street gang (§ 186.22,
subd. (b)(1)). Defendant appealed claiming numerous trial errors and that the 10-year
sentence imposed pursuant to section 186.22 must be struck. Additionally, we granted
defendant’s request for supplemental briefing on the impact of Senate Bill No. 620 and
whether the matter must be remanded for the trial court to consider whether to exercise
its discretion to strike the section 12022.5 and 12022.53 firearm enhancements.
We originally concluded that defendant’s confrontation clause violation
contentions under Crawford v. Washington (2004) 541 U.S. 36 [158 L.Ed.2d 177]
(Crawford) and People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez) were forfeited
because trial counsel failed to make a specific objection in the trial court concerning the
confrontation clause violation theories he advanced on appeal regarding the gang expert
testimony. The California Supreme Court granted review and deferred action pending its
decision in People v. Perez (2020) 9 Cal.5th 1 (Perez) . Thereafter, our high court in
Perez held that a defendant’s failure to object, pre-Sanchez, to the admission of case-
specific testimonial hearsay does not forfeit a claim based on Sanchez. (Id. at pp. 4, 9.)
And our high court in Perez disapproved of our original opinion on this basis. (Id. at
p. 14.)
Our high court further deferred action in this case pending disposition in People v.
Valencia (2021) 11 Cal.5th 818 (Valencia). Valencia addressed the manner in which the
1 Further undesignated statutory references are to the Penal Code in effect at the time of
the charged offenses.
2
prosecution must prove the existence of predicate offenses (§ 186.22, subd. (e)) for
purposes of proving “a pattern of criminal gang activity” (§ 186.22, subd. (f)) in cases
involving allegations of active gang participation (§ 186.22, subd. (a)) or gang
enhancement allegations (§ 186.22, subd. (b)). In our original opinion, we concluded that
predicate offenses not involving the defendant on trial were background facts, not case-
specific facts as the court in Sanchez had defined such facts. Therefore a gang expert was
permitted to testify about such matters, even if that testimony was based on hearsay
sources. In Valencia, our high court, after clarifying what it meant by background facts
and case-specific facts, held that the commission of predicate offenses must be proven by
independently admissible evidence and that, under Sanchez, “such proof may not be
established solely by the testimony of an expert who has no personal knowledge of facts
otherwise necessary to satisfy the prosecution’s burden.” (Valencia, at p. 826.) Valencia
disapproved of our original opinion on this issue. (Id. at p. 839, fn. 17.)
Our high court transferred the matter back to us and directed that we vacate our
original decision and reconsider the cause in light of Perez and Valencia. Both parties
have briefed both issues.
In light of Perez, we conclude defendant did not forfeit his contentions under
Crawford and Sanchez. We conclude the admission of the inadmissible evidence was
harmless beyond a reasonable doubt as to the charged offenses and firearm enhancement
allegations. However, because the gang expert did not have personal knowledge of the
facts underlying the predicate offenses about which he testified, this testimony was
improperly admitted under Valencia. Further, while the charged offenses may supply one
of the minimum of two predicate offenses, the remaining evidence was not sufficient to
prove a second predicate offense, and therefore the admission of the expert’s case-
specific hearsay testimony on this subject was not harmless beyond a reasonable doubt as
to the gang enhancement. Accordingly, we shall reverse the true finding on the gang
enhancement allegation.
3
Defendant’s other claims of trial error are forfeited, without merit, nonprejudicial,
or have been rendered moot. On remand, the People may elect whether to retry
defendant on the gang enhancement allegation.2 In any event, the trial court shall
consider whether to strike the firearm enhancements pursuant to the authorization to do
so provided by Senate Bill No. 620 in furtherance of justice under section 1385,
subdivision (a). In the event the trial court declines to exercise that discretion, the court
shall impose sentences on the section 12022.5 and 12022.53, subdivision (b)
enhancements and then stay execution of those sentences pursuant to section 12022.53,
subdivision (f).
FACTUAL AND PROCEDURAL BACKGROUND
The Prosecution’s Case
The Shooting and Investigation
On the night of February 8, 2012, Weena Vue travelled to Sacramento from the
Merced area with four girlfriends to hang out. They went to Casino Royale to eat. There
they met the victim Christopher Sisoukchaleun (also known as Bud), Jack
Thammavongsa, Sunny Manivong, Roger Bouriboune, Udom Ketphanh, and an
individual named Lou. After leaving Casino Royale, the group drove in several cars to
the Sunland Liquor store (Sunland), the location where the murder later occurred.
Thammavongsa (Sisoukchaleun’s cousin) drove Sisoukchaleun’s car because
Sisoukchaleun was drunk. The group arrived at Sunland at approximately 1:55 a.m.
As they started walking from their parked car toward Sunland, Sisoukchaleun or
Thammavongsa made a hand gesture. Manivong testified that Sisoukchaleun was “not
2 While the People may have the option to retry defendant on the gang enhancement
allegation, we would note that doing so would have little practical consequence. Under
the circumstances of this case, defendant’s conviction is not subject to the 10-year
enhancement under subdivision (b)(1)(C) of section 186.22. (People v. Elizalde (2015)
61 Cal.4th 523, 539, fn. 10; People v. Lopez (2005) 34 Cal.4th 1002, 1004.)
4
throwing up no gang sign.” Thammavongsa testified that Sisoukchaleun was “[t]hrowing
up a peace sign” to the girls that pulled up in the other car. Manivong, who also made
hand gestures, testified that he did not throw up gang signs, but was simply pointing at
Sisoukchaleun and Thammavongsa. 3
As they walked up to Sunland, Thammavongsa and Sisoukchaleun both used the
word “cuz” in their conversation, and Thammavongsa said something about wanting to
race. According to Vue, an African-American male, 5’6” or 5’7” tall with closely
cropped hair and wearing a black leather jacket and blue jeans with a design of wings or
flames on them, who was standing near the door to Sunland, responded, “ ‘Yeah, I know
what you mean. [¶] I like that, too, Blood, but you know, this is Blood all the way.’ ”4
Vue also testified that the man said, “ ‘I am a Blood.’ ” According to Thammavongsa,
after he said, “ ‘Cuz, get some drink,’ ” the man standing near Sunland, whom he
identified as defendant, said, “ ‘Blood, Meadowview, Meadowview bloods’ ” or
“ ‘Blood, Meadowviews, 69.’ ” Vue testified that Sisoukchaleun responded, “ ‘Yeah, this
is LAC, Little Asian Crip.’ ”5 Thammavongsa acknowledged that such an exchange
would amount to “[f]ighting words” because Bloods and Crips do not get along.
According to Vue, while the conversation had not been aggressive at its inception, at this
time, the African-American man “got into [Sisoukchaleun]’s face.” According to
3 Manivong testified that he was not a gang member, and he did not “represent nothing.”
4 At trial, Vue did not identify the African-American male she observed on the night of
the shooting. However, according to a former Sacramento Police Department sergeant,
on February 15 or 16, 2012, Vue identified defendant in a photo lineup as the shooter.
5 Only Vue used the term “ ‘Little Asian Crip.’ ” Thammavongsa testified that both he
and Sisoukchaleun were “affiliated” with LGC, or Lao Gangster Crips. Neither
Thammavongsa nor Manivong said they recalled hearing anyone say “LGC” or “Little
Gangster Crip.” However, Thammavongsa testified that a possible response if defendant
said, “ ‘Meadowview Blood’ ” would be to say, “ ‘No, this is LGC.’ ”
5
Thammavongsa, Sisoukchaleun “got tired of hearing” defendant say “ ‘Blood,
Meadowview.’ ” Vue became scared and went to her girlfriend’s car.
According to Manivong, defendant walked to a white pickup truck parked nearby,
opened a tool box, grabbed something, and put it in his back pocket. Sisoukchaleun
removed his shirt and it appeared that he and defendant would fight. Sisoukchaleun and
defendant walked into the street. Thammavongsa followed. The other guys in their
group were “[r]ight there with us” according to Thammavongsa. Thammavongsa
acknowledged that he would have intervened if Sisoukchaleun was getting beaten up.
According to Thammavongsa, Sisoukchaleun was saying, “ ‘Let’s fight,’ ” but
defendant “didn’t really say nothing” and was not squaring up to fight. Sisoukchaleun
took a swing at defendant, but defendant dodged the blow. Defendant pulled out a gun.
Manivong heard a woman say, “ ‘He’s got a gun.’ ” Defendant then shot Sisoukchaleun
in the face. Manivong, Thammavongsa, and Sisoukchaleun started running. Defendant
fired a second shot and Sisoukchaleun fell, gasping for air, and then Manivong heard two
more shots. Someone called 911. Defendant got into the passenger side of the pickup
and was driven away by a woman. Manivong provided the pickup’s license plate number
to the police when they arrived approximately five minutes later.
Thammavongsa and Manivong both testified that no one in their group had any
weapons that night. Vue never observed Sisoukchaleun or any of the other guys in their
group with any weapons. Manivong informed the police that the gun that was used was a
.38-caliber revolver.
The parties stipulated that a video recording of the scene in the vicinity of the
shooting recorded by a surveillance camera owned by the City of Sacramento accurately
depicted that location on February 9, 2012, and the recording was introduced into
evidence. We have reviewed the video. There is no sound, and the actual shooting takes
place out of the camera view, but events before and after the shooting can be seen on the
recording.
6
In the events as shown on the video recording, defendant was standing outside of
Sunland when Thammavongsa and Sisoukchaleun, identified at trial on the video by
Thammavongsa, arrived and approached the store. Manivong, who identified himself in
the video, and Ketphanh approached from the other direction. Both Sisoukchaleun and
Manivong made hand gestures. As the group approached, defendant emerged from
Sunland’s recessed entry and stood on the sidewalk in front of the store. Defendant was
briefly among Thammavongsa, Manivong, and an unidentified individual in front of the
recessed entry. Thammavongsa walked around defendant’s left and almost bumped into
defendant as he passed. Defendant turned to his left behind Thammavongsa. As he did
so, Thammavongsa raised his right arm up for a brief moment.
It appears that defendant spoke with members of the group.6 Defendant,
Thammavongsa, Sisoukchaleun, Manivong, Vue, and others all crowded in the recessed
store entry. Vue began to walk away from the storefront just as a white pickup truck
driven by a woman parked in front of Sunland. Defendant turned away from the group
and walked to the white pickup, where it is undisputed he retrieved a handgun from a
toolbox in the truck bed. The woman got out of the truck and walked around the back of
the truck toward defendant who was on the passenger side. She and defendant then
approached the store. The woman walked into the recessed entry where Sisoukchaleun’s
group was located while defendant stayed back on the sidewalk gesticulating with his
arms, bobbing his head toward the entryway, and appearing to speak angrily to the people
therein. Sisoukchaleun, identified at this point in the video by Manivong and
6 When viewing the surveillance video during her testimony, Vue initially pointed to a
different unidentified African-American individual as being the person who spoke with
Sisoukchaleun and who subsequently walked over to the white pickup truck.
Defendant’s trial counsel argued in closing that it was not clear defendant was the
individual who spoke with Sisoukchaleun. Nonetheless, ultimately, at trial and on
appeal, defendant does not dispute he was the individual who interacted with, and
ultimately shot and killed, Sisoukchaleun.
7
Thammavongsa, removed his outer shirt and handed it to an unidentified individual. As
defendant and Sisoukchaleun appeared to confront each other, Sisoukchaleun walked off
of the sidewalk, into the street, and out of camera view while defendant can still be seen
on the periphery of the frame. An unidentified African-American male walked from the
recessed entry and approached defendant with his arm extended. He then placed his arm
over defendant’s chest, appearing to speak to him and hold him back from the
confrontation. At this time, Thammavongsa and Manivong gathered near defendant.
Defendant appeared to speak somewhat animatedly with the unidentified African-
American male, pointing his finger at that person’s chest. Thammavongsa and Manivong
looked on. Defendant then walked around the unidentified African-American male, off
of the sidewalk in the direction Sisoukchaleun had walked, and out of the frame. In the
meantime, the woman who had parked the truck came out of the recessed area, walked
behind the group, and followed defendant out of the frame. Thammavongsa followed
defendant out of the frame. A moment later, the unidentified individual who took
Sisoukchaleun’s shirt can be seen ducking suddenly and retreating behind the white
pickup truck. Most of the individuals in the vicinity then scattered. Sisoukchaleun
himself can briefly be seen running away. The woman who drove the pickup truck then
walked back into the store entryway, received a package or bag, ran to the driver’s door
of the pickup, and got in. Defendant got in the passenger side of the pickup and left the
scene, driven by the woman.
Officer Paul Fong, who arrived shortly after 2:00 a.m., was the first officer on the
scene. Manivong relayed to Fong the license plate number of the pickup, and Fong
broadcast that information immediately.
Later in the morning, Officer Konrad Von Schoech stopped a Kia in which
defendant was a passenger. Von Schoech transported defendant to the police station.
There, Detective Thomas Shrum intended to swab defendant’s hands for gunshot residue.
However, after his arrest, defendant asked to use the restroom. He was accompanied by
8
Detective Shrum. As defendant was walking to the sink after urinating, Detective Shrum
told defendant not to wash his hands. Defendant put his hands on the soap dispenser,
looked at Shrum, soaped up his hands, and washed them anyway. Thereafter, Detective
Shrum interviewed defendant briefly. During the interview, defendant claimed someone
had stolen his truck.
Detective Bryan Alonso participated in a search of the Kia the following day.
Alonso discovered a set of license plates under blankets in the rear of the vehicle.
Additionally, a bag in the Kia contained a rolled-up pair of jeans with a red design.
Alonso also participated in a search at a residence. In the backyard, police
discovered a white F-150 pickup truck without license plates. The vehicle identification
number of the truck corresponded to the license plates discovered earlier inside the Kia.
In the truck, police found an empty prescription bottle bearing defendant’s name and
address.
Alonso participated in a search at defendant’s apartment. Police discovered items
bearing defendant’s name. Additionally, police discovered a suitcase in the living room
containing .380-caliber auto and nine-millimeter ammunition. Behind a television in the
bedroom, police discovered a .40-caliber magazine and a black holster. Police also
discovered a box of Remington .357-caliber ammunition containing 10 rounds and a box
of Remington .38-caliber ammunition containing 33 rounds.
According to the forensic pathologist who conducted the autopsy on
Sisoukchaleun, he sustained one gunshot wound “pretty much on the bridge of the nose,
near the center of his face,” and another on the left side of his torso. Sisoukchaleun died
as a result of these gunshot wounds. The muzzle of the gun was approximately six inches
away when it fired the shot that struck Sisoukchaleun in the face. The muzzle was
approximately eight to ten inches away, possibly as little as six inches, when the bullet
was fired that struck Sisoukchaleun in the torso. The bullet recovered from
9
Sisoukchaleun’s torso was a .38-caliber round. Sisoukchaleun’s blood alcohol level was
0.28 percent.
Recorded Phone Calls from the Jail
Excerpts of recorded phone calls defendant made from the county jail were played
for the jury. In a phone conversation later in the day after his arrest with someone he
referred to as “Momma,” defendant responded to a question about whether he committed
the murder by repeating the claim that someone stole his truck. He said, “Somebody
stole my damn truck man and they went and did a crime man. Momma, now it - it just
looks like I’m guilty.”
In a phone conversation a day later with someone defendant identified as
Grandma, he again said somebody had used his truck to commit a crime. When asked
what kind of crime, defendant replied, “I think murder.” He said he did not report his
truck stolen because he had been drinking that night.
In a second call that day, defendant spoke with a male. The conversation begins
after the male accepted the collect call from defendant.
“Male: What’s up cuz? What’s happening with it?
“Defendant: Man, it’s looking all bad for the home team blood.
“Male: Blood, come on now.
“Defendant: Yep. It’s real bad.
“Male: I’m hella mad b- I’m hella mad at you blood. I’m hella mad but, uh.
“Defendant: [¶] . . . [¶] . . . I don’t even know what to do, man. I don’t even
know what to do. Right now it’s just hush mode and wait until they say something to me,
you dig what I’m saying?
“Male: Well, that’s what you do then, blood. . . .
“Defendant: [¶] . . . [¶] . . . I mean somebody stole my shit man. And I [¶] . . .
[¶] I was too drunk to even call the police. I was too drunk, nigga. I had drunk two
fifths to myself man.” (Italics added.)
10
The following day, defendant had a phone conversation with a woman, during
which she informed him that she had heard on the news that there was video of the
shooting. Defendant’s response was: “Are you serious?” He asked if his picture was on
the video and then said again somebody had stolen his truck. He said he was too drunk to
report it to the police and then said, “Shit. That’s my story and I’m sticking with it.” In
discussing people with whom he was housed at the jail, defendant said, “They had a Crip
in here. Long as that nigga don’t say nothing crazy to me. [¶] . . . [¶] Yeah and they
forget. They remember when a mother fucker shot me in my back. That’s why I can’t be
associated with no Crip. Because they - they remember when they - I got shot in my
back. [¶] . . . [¶] . . . But when they shot me in my back, I was a youngster but I went to
jail too. [¶] . . . [¶] Because I was in sort of a gang shooting.”
Defendant did not claim that he shot Sisoukchaleun out of fear for his safety or in
self-defense during any of the recorded phone conversations.
Gang Expert Testimony
Detective Justin Saario testified as an expert in African-American criminal street
gangs. According to Saario, respect is the ultimate driving force in gang culture.
However, respect to gang members is not the same as respect as understood by members
of society at large. In gang culture, respect is forced by instilling fear in rival gang
members and in the community. For gang members, respect and fear are roughly
synonymous. If a gang member is disrespected, there is an expectation that the situation
“is dealt with,” because disrespect shown to the gang member reflects poorly both on the
gang member and the gang itself. In the absence of a response to a showing of
disrespect, the individual and the gang will be perceived as weak.
Saario testified that Meadowview Bloods are a subset of the Bloods criminal street
gang. They identify with the color red. Crip gangs, rivals to the Bloods, identify with the
color blue. Crips use the term “cuz” in referring to one another, whereas Bloods use the
term “Blood.”
11
LGC, or Lao Gangster Crip, is a North Sacramento Asian gang. Saario testified
that Asian gangs emulate or “copycat” African-American gangs.
According to Saario, the primary activities of the Meadowview Bloods are
robbery, burglary, narcotic sales, weapons possession, and assaults with deadly weapons,
which have led to murders. As we shall discuss further post, Saario testified about
predicate offenses involving three Meadowview Blood gang members, occurring on one
occasion. None of these individuals were involved in defendant’s trial. Saario testified
that these individuals beat a Crip gang member and when the Crip fled, one of the three
Bloods attempted to follow the Crip into his house armed with a firearm. The Crip
obtained a gun, came out and shot one of the three Bloods. One of the Bloods was
convicted of active participation in a criminal street gang, specifically the Meadowview
Bloods; another was convicted of active participation in a criminal street gang,
specifically the Meadowview Bloods, and felony battery; and the third was convicted of
residential burglary, assault with a with force likely to cause great bodily injury, and
being a felon in possession of a firearm and ammunition. Certified court records of these
convictions were admitted into evidence.
Saario testified about a series of prior crimes and contacts defendant previously
had with law enforcement that aided in Saario’s opinion about defendant’s gang
affiliation. This testimony is the primary subject of defendant’s confrontation clause
claim.
In November 1991, defendant was walking in South Sacramento when a vehicle
occupied by several African-American males drove by. One of the individuals shot at
defendant, striking him in the back. At the time, defendant was wearing a red 49ers
jacket and a red 49ers hat. Defendant initially denied being a gang member, but then
acknowledged that “sometimes people think that he is with the Meadowview Bloods.”
According to defendant’s friend or cousin, defendant was shot by a member of the Oak
12
Park Bloods because of a rivalry that existed between the Meadowview Bloods and the
Oak Park Bloods.
In December 1992, police officers went to an address in response to a narcotics
complaint. They discovered that there were several people at that location who were on
searchable probation. Police came into contact with defendant, who was the subject of a
felony warrant at the time. Police searched the residence and discovered 10 pieces of
rock cocaine in a bedroom associated with a Mr. Wormley. As police were leaving the
residence with defendant, Wormley entered the apartment. In his pocket, police
discovered a “photograph of a male black individual and on the back of that photograph,
it said, ‘AY.B. from the M.V.B., bka des.’ ” Saario stated that M.V.B. stood for
Meadowview Bloods. Defendant later confessed that, as police approached the
apartment, he hid the rock cocaine in Wormley’s bedroom.
On June 2, 1993, police stopped a vehicle occupied by defendant and the driver,
Oscar Daniels, a “Blood associate.” In the vehicle, police discovered a .22-caliber
semiautomatic handgun in the driver’s door.
On October 26, 1993, a police officer observed defendant riding a bicycle. The
officer attempted to stop defendant, but defendant dismounted from the bicycle and ran.
As the police officer chased defendant, defendant pulled out a rifle which he had
concealed in his pants and the officer shot defendant. At the time, defendant was wearing
a red bandana. According to Saario, at that time, gang members commonly identified
themselves with red or blue bandanas depending upon their affiliation. Defendant was
identified in the police system as a Meadowview Blood, and police noted the
“Meadowview” tattoo on his left arm.
On January 11, 1995, police contacted defendant in connection with a domestic
violence call. Defendant was wearing burgundy pants and was described as a
Meadowview Blood.
13
On September 2, 1995, defendant and Daniels, wearing ski masks, drove up to a
male who was in a parking lot placing his daughter into his vehicle. Either defendant or
Daniels pulled out a gun and demanded the victim’s wallet and keys. The victim ran
away, and defendant and Daniels drove off. Sheriff’s deputies stopped the vehicle
defendant was driving. In the vehicle, officers discovered a red ski mask under the
driver’s seat and another ski mask under the passenger seat. Officers also discovered a
.41-caliber Smith and Wesson revolver on the passenger’s side of the vehicle. Defendant
and Daniels were identified at a showup.
In April 2002, defendant committed gang-related crimes with Lawrence Barnett, a
Del Paso Heights Blood.
Saario also relied upon the recorded phone call defendant made from the jail to the
woman in which defendant said there was a Crip in custody with him, but that as,
“ ‘[l]ong as that nigga don’t say nothing crazy,’ ” defendant did not care. Saario testified
that defendant went on to say, “ ‘[t]hey remember when motherfucker shot me in my
back. That’s why I can’t be associated with no Crip, because they remember. They
remember when they -- I got shot in my back. ‘” Saario testified defendant further said,
“it was ‘because it was sort of a gang shooting.’ ”
On cross-examination, the defense asked Saario about the phone conversation
defendant had with the male the previous day, during which the male initially referred to
defendant as “ ‘cuz.’ ” Saario stated that, while it was unusual for a Blood to call another
Blood “cuz,” these rules were not “etched in stone.” Saario also noted that, during the
conversation, the male speaking to defendant referred to defendant as “ ‘Blood’ ”
multiple times and defendant also referred to the male as “ ‘Blood.’ ”
Saario testified that it is common for gang members to obtain tattoos identifying
themselves. Saario personally observed a tattoo on defendant’s left arm that said
“Meadowview,” and testified that this also weighed into his opinion regarding
defendant’s gang affiliation.
14
Based on defendant’s background, his prior contacts with law enforcement, his
Meadowview tattoo, and his statements about the Bloods and Meadowview just prior to
shooting Sisoukchaleun, Saario opined that defendant was a member of the Meadowview
Bloods.
Saario further opined that, in a hypothetical situation mirroring the facts of this
case, the shooter’s actions would benefit the Bloods. Saario elaborated: “That benefits
the Bloods, based on the fact that the individual, the Blood gang member when being -- it
goes to the whole respect and disrespect aspect of a Crip gang member calling out using
Crip terminology, and the [B]lood gang member taking offense to that, and challenging
the Crip by saying, ‘No, this is Bloods.’ That puts everybody on notice. Crip gang
member and anybody else that is there, that by you doing that, that is disrespectful to me
being a Blood gang member. And by me saying, No, it’s Bloods. This is Meadowview.
I’m announcing that I’m a Blood gang member. And what you’re doing is disrespect. [¶]
There’s two ways that it can go right there. The Crip can, ‘Hey, man, sorry. You know,
it all cool. Let’s just hang out’ or take offense to the challenge of him not respecting and
challenging him by saying ‘It’s Blood’ thing. And it’s that drastic escalation at that point
based on disrespect from rival gangs, being Crips and Bloods.” Saario further testified
that “[t]his is Meadowview” puts everyone on notice, “I’m Meadowview. This is what
it’s about. And basically, that’s not gonna be allowed. You can’t throw out Crip stuff
when I’m a Blood.” The reference to Meadowview communicated, “I represent
Meadowview. I am Meadowview.”
With regard to hypothetical conduct mirroring defendant’s actions in retrieving the
gun from his truck, Saario testified, “At that point, the individual -- once he puts out, ‘I’m
a Blood,’ you know that that’s just gonna -- this is not gonna go anywhere good. And the
individuals[] involved in it know that as well. [¶] . . . [T]here’s an ultimate sign of
power within the gang culture, and that’s a firearm. Individuals that are armed are more
confident because they know that there’s nothing more that anybody can have other than
15
a firearm. There’s not bazookas or anything like that around. So if you’re armed, you
have the ultimate weapon of power or item of power. [¶] So by going and getting that,
that weapon, he knows that no matter what happens, there’s nothing that I can be outdone
with. So if I’m gonna go back and confront this person -- there’s a term, it’s called,
‘caught slipping.’ Individuals that are caught slipping are individuals that engage in a
confrontation without a weapon. Commonly people will say, I was caught slipping, you
know, at a house party. You know, I didn’t have a gun on me. I’m a gang member in a
certain area. I didn’t have my gun on me. I was caught slipping. [¶] So by him having
his gun, he’s not caught slipping. He knows that no matter what, he’s got that -- that
back up, being the gun. No matter what happens, he’s able to use it.”
Saario testified that the hypothetical scenario was a typical gang escalation; “[w]e
see it all of the time.”
Defense Case
Defendant did not testify and the defense presented no witnesses. Trial counsel
argued to the jury that defendant acted in self-defense or imperfect self-defense.
Verdict and Sentencing
The jury found defendant guilty of murder in the first degree (§§ 187, subd. (a),
189) and possession of a firearm by a felon (§ 29800, subd. (a)(1)). The jury also found
true all three firearm enhancement allegations (§§ 12022.5, subd. (a), 12022.53, subd. (b),
12022.53, subd. (d)), as well as the gang enhancement allegation (§ 186.22, subd. (b)(1)).
The court sentenced defendant to a term of 85 years to life, calculated as follows:
25 years to life for murder in the first degree, doubled to 50 years to life for a prior strike
conviction; a consecutive term of 25 years to life for the personal use of a firearm
enhancement pursuant to section 12022.53, subdivision (d); and a consecutive term of 10
years on the gang enhancement (§ 186.22, subd. (b)(1)(C)). The trial court stayed
imposition of sentence on the section 12022.5, subdivision (a), and section 12022.53,
16
subdivision (b), enhancements.7 The court imposed a term of two years on count two,
possession of a firearm by a felon (§ 29800, subd. (a)(1)), and stayed execution of that
sentence.
DISCUSSION
I. Confrontation Clause Claim
Defendant contends that the trial court impermissibly allowed the prosecution’s
gang expert to relay testimonial hearsay to the jurors in violation the confrontation clause
and Crawford, supra, 541 U.S. 36. In his original briefing, defendant argued that, under
the then-recent United States and California Supreme Court case law, the practice of
permitting a gang expert to convey testimonial hearsay statements to jurors in discussing
the bases for the expert’s opinion had lost its viability. While this appeal was originally
pending, our high court decided Sanchez, supra, 63 Cal.4th 665, and we granted
defendant’s motion for supplemental briefing. We agreed with the People that defendant
forfeited these claims by failing to object in the trial court. Reconsidering the issue in
light of Perez, supra, 9 Cal.5th 1, we conclude defendant has not forfeited his contention.
A. Crawford and Sanchez
In Crawford, the United States Supreme court held that the admission of
testimonial hearsay violates the confrontation clause unless the declarant is unavailable
for trial and the defendant had a prior opportunity to cross-examine the declarant.
(Crawford, supra, 541 U.S. at pp. 53-54, 59.) However, the court further stated that the
confrontation clause does not prohibit the admission of testimonial statements for
purposes other than establishing the truth of the matter asserted. (Id. at p. 59, fn. 9.)
7 Although not raised by the parties, we address the trial court’s failure to impose a
sentence on each of these enhancements and then stay execution thereof in part X. of the
Discussion, post.
17
In Sanchez, our high court considered “the degree to which the Crawford rule
limits an expert witness from relating case-specific hearsay content in explaining the
basis for his opinion,” and held that “case-specific statements related by the prosecution
expert concerning defendant’s gang membership constituted inadmissible hearsay under
California law.” (Sanchez, supra, 63 Cal.4th at p. 670.) The Sanchez court defined
“[c]ase-specific facts [as] those relating to the particular events and participants alleged to
have been involved in the case being tried.” (Id. at p. 676.) The Sanchez court further
held that some of the hearsay statements in that case were also testimonial and should
have been excluded under Crawford. (Sanchez, at pp. 670-671.)
Our high court “adopt[ed] the following rule: When any expert relates to the jury
case-specific out-of-court statements, and treats the content of those statements as true
and accurate to support the expert’s opinion, the statements are hearsay. It cannot
logically be maintained that the statements are not being admitted for their truth. If the
case is one in which a prosecution expert seeks to relate testimonial hearsay, there is a
confrontation clause violation unless (1) there is a showing of unavailability and (2) the
defendant had a prior opportunity for cross-examination, or forfeited that right by
wrongdoing.” (Sanchez, supra, 63 Cal.4th at p. 686, fn. omitted.) In adopting these
rules, the Sanchez court disapproved of its pre-Crawford decisions which held that the
matters upon which an expert relied as the bases of the expert’s opinion were not offered
for their truth. (Sanchez, at p. 686, fn. 13.) The Sanchez court specifically disapproved
of People v. Gardeley (1996) 14 Cal.4th 605, 618-619 (Gardeley), disapproved in
Sanchez at page 686, footnote 13, inasmuch as “it suggested an expert may properly
testify regarding case-specific out-of-court statements without satisfying hearsay rules.”
(Sanchez, at p. 686, fn. 13.)
B. Forfeiture and Perez
“[A]s a general rule, ‘the failure to object to errors committed at trial relieves the
reviewing court of the obligation to consider those errors on appeal.’ [Citations.] This
18
applies to claims based on statutory violations, as well as claims based on violations of
fundamental constitutional rights.” (In re Seaton (2004) 34 Cal.4th 193, 198.) As noted
by the United States Supreme Court, states may apply this rule to federal confrontation
clause objections. (Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305, 313, fn. 3 [174
L.Ed.2d 314, 323, fn. 3] [“The right to confrontation may, of course, be waived,
including by failure to object to the offending evidence; and States may adopt procedural
rules governing the exercise of such objections”].) Such a rule can be found in Evidence
Code section 353,8 and our high court has repeatedly noted that a timely and specific
objection on confrontation grounds is required to preserve confrontation clause violation
theories on appeal. (People v. Redd (2010) 48 Cal.4th 691, 729, citing Evid. Code,
§ 353; see also People v. D’Arcy (2010) 48 Cal.4th 257, 290; People v. Waidla (2000) 22
Cal.4th 690, 726, fn. 8; People v. Dennis (1998) 17 Cal.4th 468, 529; People v. Alvarez
(1996) 14 Cal.4th 155, 186.) The requirement of an objection on specific grounds “gives
both parties the opportunity to address the admissibility of the evidence so the trial court
can make an informed ruling, and creates a record for appellate review.” (People v.
Davis (2008) 168 Cal.App.4th 617, 627 (Davis).) Making the objection in the trial court
also gives the proponent of the evidence an opportunity to cure the defect in the evidence
if possible (People v. Pearson (2013) 56 Cal.4th 393, 438), or forgo introducing all or
some of the evidence. In other words, a specific objection gives the proponent of the
evidence the opportunity to take “steps designed to minimize the prospect of reversal.”
(People v. Morris (1991) 53 Cal.3d 152, 187-188, disapproved on other grounds in
People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1.) “ ‘[I]t is unfair to the trial judge
8 In pertinent part, Evidence Code section 353 provides: “A verdict or finding shall not
be set aside, nor shall the judgment or decision based thereon be reversed, by reason of
the erroneous admission of evidence unless: [¶] (a) There appears of record an objection
to or a motion to exclude or to strike the evidence that was timely made and so stated as
to make clear the specific ground of the objection or motion.” (Italics added.)
19
and to the adverse party to take advantage of an error on appeal when it could easily have
been corrected at the trial.’ ” (Davis, at p. 627, quoting 9 Witkin, Cal. Procedure (4th ed.
1997) Appeal, § 394, pp. 444-445.)
Defendant contends that, notwithstanding the absence of any specific objection in
the trial court on the relevant grounds, he has not forfeited his claim because any
objection would have been futile under case law as it existed at the time. Defendant
points out that the decisional law at the time provided that an expert witness could testify
as to the material that forms the basis of his or her opinion, even if it would otherwise be
inadmissible. (Gardeley, supra, 14 Cal.4th at pp. 618-619; People v. Thomas (2005) 130
Cal.App.4th 1202, 1209-1210 (Thomas).) Defendant further notes that prior decisional
law also held that because such testimony is not offered for the truth of the matter, but
rather to explain the gang expert’s testimony, it did not violate the confrontation clause.
(Thomas, at pp. 1209-1210.) According to defendant, any attempt to register a specific
confrontation clause objection would have been futile at the time and, as a consequence,
the failure to do so should be excused.
We originally concluded that, because defendant did not register a confrontation
clause objection, he had forfeited his contentions. Subsequently, our high court in Perez
held that a defendant does not forfeit a Sanchez contention where the defendant failed to
object on that ground prior to Sanchez. (Perez, supra, 9 Cal.5th at pp. 4, 9.) Moreover,
our high court expressly disapproved of our forfeiture determination in Blessett. (Id. at
p. 14.) Under Perez, it is clear that defendant did not forfeit his contentions and that they
are properly before us.
C. The Gang Expert’s Testimony and Valencia
We now turn to the expert’s testimony to consider what portions of this testimony
should not have been relayed to the jury under the principles announced in Sanchez as
clarified by Valencia. We first look at his testimony regarding the prior crimes and
20
contacts defendant had with law enforcement used as part of the basis for the expert’s
opinion that defendant was a member of the Meadowview Bloods.
The prosecution’s gang expert testified about the following events, which served
as part of the basis for his opinion concerning defendant’s gang membership: the
November 1991 incident when defendant was shot in the back allegedly in relation to a
rivalry between the Oak Park Bloods and the Meadowview Bloods; the December 1992
incident where defendant was arrested for a felony warrant and admitted possession of
rock cocaine found at the location; the June 1993 incident when he was in a car with
another when a firearm was found in the car; an incident in October 1993 when, while
running from the police, he displayed a firearm and was shot by the officer; the January
1995 police contact involving a domestic violence call; his commission of armed robbery
in September 1995; and his commission of unspecified gang crimes in April 2002 with a
Del Paso Heights Blood. These events each had gang overtones related to the people
with whom defendant was associated at the time, the nature of the crime being consistent
with the primary activities of the Meadowview Bloods, defendant’s identification as a
Meadowview Blood at the time, the color of the clothes defendant was wearing, or the
discovery of gang writing and defendant’s tattoo.
The People now concede that this testimony was hearsay, testimonial, and case-
specific under Sanchez and Valencia, and we agree.9 We shall discuss whether defendant
was prejudiced by the admission of this evidence in part I.D of the Discussion, post.
9 In beginning the direct examination concerning defendant’s prior crimes and police
contacts, the prosecutor asked the expert whether he “had an opportunity to review
[defendant]’s background and a number of the contacts that he’s had.” The expert said he
had. The prosecutor did not ask whether the expert reviewed police reports and/or
similar materials, and the expert did not volunteer as much. However, the expert did not
begin working with the police department until 2000 and was not assigned to the
problem-oriented policing team addressing gang activity until three years later.
21
In addition to the hearsay upon which the expert relied in opining about
defendant’s gang membership, defendant also objects on Crawford/Sanchez grounds to
the expert’s testimony concerning the predicate offense testimony offered to establish
that the Meadowview Bloods is a criminal street gang. To establish that an organization
is a criminal street gang, the prosecution must prove, among other things, that the group
has engaged in a pattern of criminal conduct, and this requires a showing that the group
has engaged in the requisite number of enumerated predicate offenses. (§ 186.22,
subd. (e).) As stated ante, the gang expert testified about predicate offenses involving
three Meadowview Blood members, none of whom were defendant.
Defendant asserted in his original briefing that admission of the gang expert’s
testimony relaying the facts of the predicate offenses violated his confrontation clause
rights. In his supplemental reply brief, defendant asserted that the facts necessary to
prove a pattern of criminal gang activity pursuant to section 186.22 are case-specific facts
within the meaning of Sanchez because they are facts used to prove the gang
enhancement which is charged in the particular case.
In Valencia, supra, 11 Cal.5th 818, our high court clarified its view of what
constitutes case-specific and background facts. As noted, it had held in Sanchez that
case-specific facts are facts that relate to “the particular events and participants alleged to
have been involved in the case being tried.” (Sanchez, supra, 63 Cal.4th at p. 676.) In
Valencia, the court wrote: “We acknowledge that the statutorily required predicate
offenses do not fit neatly into the description Sanchez provided. At least some of these
offenses will most often have occurred before ‘the case being tried’ [citation] and will
Consequently, the expert’s knowledge of virtually all of these matters could not have
been based on firsthand knowledge or anything other than police reports and the like.
Also, on this record, there is no indication that any of the statements qualified under any
exception to the hearsay rule. Furthermore, these matters all related to defendant and
were thus case-specific facts since they related to a “participant[] alleged to have been
involved in the case being tried.” (Sanchez, supra, 63 Cal.4th at p. 676.)
22
have been committed by others who were not involved in the new charges at issue. But
Sanchez was addressing case-specific facts as they arose in the particular matter at hand;
it did not address the question we face here.” (Valencia, at p. 839.) The court explained:
“To determine whether predicate offenses are case-specific or background facts, we must
look beyond an isolated phrase in Sanchez and instead probe the underlying rationale
permitting experts to rely on and relate certain hearsay.” (Id. at p. 835.) Experts are
given latitude to testify about “background information regarding [their] knowledge and
expertise and premises generally accepted in [their] field.” (Ibid.) The “[h]allmarks of
background facts are that they are generally accepted by experts in their field of
expertise, and that they will usually be applicable to all similar cases. Permitting experts
to relate background hearsay information is analytically based on the safeguard of
reliability.” (Id. at p. 836.) Thus, when “experts give testimony that goes beyond their
own experience or beyond principles generally accepted in their field, the justifications
for allowing greater evidentiary latitude cease to apply.” (Ibid.) Based on this reasoning,
our high court held that testimony like that given here related to predicate offenses is not
background information; thus, predicate offenses “may not be established solely by the
testimony of an expert who has no personal knowledge of facts otherwise necessary to
satisfy the prosecution’s burden.” (Id. at pp. 826, 838-839.)
Here, defense counsel asked the gang expert on cross-examination whether he was
“actively involved in” the case involving the three Meadowview Bloods gang members
who committed the predicate offenses about which he testified. The gang expert
responded, “[a]s far as the investigation, no.” Thus, it is apparent that the gang expert’s
testimony about these predicate offenses was not based on his personal knowledge, and
was instead case-specific hearsay. It appears that the expert’s testimony was based his
review of police reports. (See fn. 9, ante.) Consequently, it was likely testimonial
hearsay. (See Sanchez, supra, 63 Cal.4th at pp. 694-695 [formal police reports may be
made with the requisite degree of formality or solemnity as to constitute testimonial
23
hearsay].) Under Valencia, we conclude the testimony was inadmissible case-specific
hearsay.
D. Prejudice
We turn to the question of whether defendant was prejudiced by the introduction
of case-specific testimonial hearsay. As we discuss in more detail, post, we conclude the
errors in admitting the gang expert’s testimony concerning defendant, his prior offenses,
and his contacts with law enforcement were harmless beyond a reasonable doubt under
Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705] (Chapman) as to the
charged offenses and firearm enhancements.
However, upon removing the gang expert’s inadmissible case-specific hearsay
testimony about the predicate offenses from the equation, there is not sufficient evidence
in the record to prove the existence of two or more predicates (§ 186.22, subd. (e)), and
thus there is insufficient evidence to establish the “pattern of criminal gang activity”
(§ 186.22, subd. (f)) element of the gang enhancement allegation (§ 186.22, subd. (b)(1)).
The admission of the expert’s case-specific hearsay on this subject, therefore, was not
harmless beyond a reasonable doubt, and we will reverse the true finding on the section
186.22, subdivision (b)(1) gang enhancement allegation.
Since Chapman, our high court has “ ‘repeatedly reaffirmed the principle that an
otherwise valid conviction should not be set aside if the reviewing court may confidently
say, on the whole record, that the constitutional error was harmless beyond a reasonable
doubt.’ ” (People v. Geier (2007) 41 Cal.4th 555, 608 (Geier); accord, People v.
Aledamat (2019) 8 Cal.5th 1, 3.) “The harmless error inquiry asks: ‘Is it clear beyond a
reasonable doubt that a rational jury would have found the defendant guilty absent the
error?’ ” (Geier, at p. 608; People v. Livingston (2012) 53 Cal.4th 1145, 1159
(Livingston).) To determine whether the People have satisfied their burden of proving the
error was harmless beyond a reasonable doubt, “we examine the entire record and must
reverse if there is a ‘ “ ‘reasonable possibility” ’ that the error contributed to the verdict.”
24
(People v. Reese (2017) 2 Cal.5th 660, 671 (Reese), italics added, citing People v. Aranda
(2012) 55 Cal.4th 342, 367 (Aranda).)
Our review requires that we address prejudice as to each count and enhancement.
1. First Degree Murder (§§ 187, 189)
Given the admissible evidence heard by the jury, we conclude that the error was
harmless beyond a reasonable doubt as to the first degree murder conviction. Given the
other evidence, there is no reasonable possibility that Saario’s testimonial hearsay
testimony about defendant’s prior contacts with the police contributed to the jury’s
verdict.
At trial, defendant did not dispute that he shot Sisoukchaleun twice, once in the
face and once in the torso, and that Sisoukchaleun died as a result. Defendant’s theory
was that he had acted in self-defense or imperfect self-defense. But the evidence showed
defendant did not act in either complete self-defense or imperfect self-defense, and there
was compelling evidence of planning, motive, and manner of killing. Courts look to
evidence of planning, motive, and manner of killing as guidelines to assess the
sufficiency of evidence establishing deliberation and premeditation (see generally People
v. Sandoval (2015) 62 Cal.4th 394, 424; People v. Anderson (1968) 70 Cal.2d 15, 26-27),
and we find it useful to use those guidelines to organize the following discussion.
The jury heard evidence from Vue, Thammavongsa, and Manivong concerning the
circumstances leading up to the altercation, culminating in defendant shooting
Sisoukchaleun. Their testimony was augmented by the surveillance video.
With regard to planning, the trial evidence demonstrated that defendant walked out
from where he had been standing in the recessed entry of the liquor store to the sidewalk
in front of the entry as Sisoukchaleun and Thammavongsa approached from one direction
and Manivong and Ketphanh approached from the opposite direction. There on the
sidewalk, defendant exchanged words with the group. He then turned and followed some
of the group back into the recessed entry. Vue testified that, while the conversation had
25
not been aggressive at its inception, as it proceeded, the African-American man “got into
Bud’s face.”
When the truck pulled up, defendant turned back toward the street and left the
entryway, unimpeded, leaving Sisoukchaleun’s group in the entryway. Defendant then
went to his pickup truck and retrieved a gun. Instead of getting in his truck and leaving
the scene, defendant chose to re-engage Sisoukchaleun’s group. The video shows that at
this point, Sisoukchaleun’s group was still in the recessed entryway of the liquor store
while defendant was on the sidewalk some distance away. Defendant’s demeanor is
animated and he appears to be angry. The video shows Sisoukchaleun taking off his
shirt. He then walked toward defendant, momentarily confronted him, and then walked
into the street.
After Sisoukchaleun walked into the street, an unidentified African-American man
approached defendant from the recessed entryway with his arm extended, placed his arm
over defendant’s chest, and appeared to speak to defendant in an effort to get defendant to
disengage. Defendant pointed his finger at that person’s chest and then walked toward
the street, away from the cab of the truck, and out of the camera frame. The evidence
showing defendant retrieving the gun, reengaging Sisoukchaleun, refusing to disengage,
and following Sisoukchaleun into the street just prior to the shooting was indicative of
planning.
As for motive, the jury properly had before it witness testimony that defendant
invoked the name of the Meadowview Bloods criminal street gang after Sisoukchaleun
and Manivong walked up making hand gestures and Thammavongsa and Sisoukchaleun
uttered the term “cuz.” After defendant invoked the name of Meadowview Bloods,
Sisoukchaleun invoked the name of the LGC or Lao Gangster Crip, with which both
Thammavongsa and Sisoukchaleun were affiliated. Thammavongsa acknowledged that
such an exchange amounted to “fighting words” because Bloods and Crips do not get
along. Based on a hypothetical set of facts, the gang expert properly testified that the
26
exchange would constitute a “drastic escalation at that point based on disrespect from
rival gangs, being Crips and Bloods.” The expert also testified: “At that point, the
individual -- once he puts out, ‘I’m a Blood,’ you know . . . this is not gonna go anywhere
good.”
Additionally, the expert testified that he personally observed defendant’s
“Meadowview” tattoo at trial. This was further evidence of defendant’s gang affiliation,
and this evidence was admissible under Sanchez. (Sanchez, supra, 63 Cal.4th at p. 677 [a
defendant’s tattoo is a case-specific fact that may be established by a witness who saw
the tattoo and the fact that the tattoo’s design is a symbol that has been adopted by a
criminal street gang is background information about which a gang expert may testify].)
Regarding defendant’s gang affiliation, the jury also heard defendant’s jail phone
conversations. In one conversation, he and the person with whom he spoke referred to
each other as “blood” several times. As the gang expert explained, Blood gang members
commonly refer to one another by the word, “blood.” In another conversation, defendant
talked about having previously been shot by a Crip “ ‘because it was sort of a gang
shooting’ ” and that he was housed near a Crip in the jail, but he did not care “ ‘[l]ong as
that nigga don’t say nothing crazy.’ ” What can be inferred from this evidence is that,
unlike the Crip with whom defendant was housed in the jail, Sisoukchaleun had said
something “crazy” to defendant by disrespecting defendant and his criminal street gang.
The motive here was quite obviously gang related, even without the case-specific
testimonial hearsay in the gang expert’s testimony.
As for manner of killing, after defendant retrieved his firearm from the truck and
re-engaged Sisoukchaleun, he followed Sisoukchaleun into the street where
Sisoukchaleun apparently thought they would engage in a fist fight. Instead, defendant
shot Sisoukchaleun twice after Sisoukchaleun threw one wild punch. The first shot was
aimed at Sisoukchaleun’s face, right between the eyes, and was fired at almost point-
blank range. Defendant fired a second shot into the side of his Sisoukchaleun’s torso,
27
also from close range. The parts of the body defendant targeted showed a cold,
calculated, and deliberate effort to end Sisoukchaleun’s life.
In addition to the very strong evidence of planning, motive, and manner of killing,
there was also evidence evincing defendant’s consciousness of guilt. When he was
arrested later in the day, the pants with the distinctive red design he had worn earlier
during the shooting were in a bag. Also found in the car in which defendant was riding
were the license plates from his truck. After he finished urinating at a police facility
restroom, he was told not to wash his hands. Defendant looked at the detective and
washed them anyway. As a consequence, a gunshot residue test could not be done.
When interviewed by the police, defendant claimed someone had stolen his truck. He
repeated that lie to others. He said that was his story and he was “sticking with it.”
Defendant contends that the jury rejected self-defense and imperfect self-defense
because of the testimony concerning his prior law enforcement contacts. Instead of
leaving after the initial confrontation,10 defendant retrieved the gun from his pickup.
There was no evidence that Sisoukchaleun or anyone in his group had any weapons or
threatened to use weapons. Nor was there any evidence of a threat to inflict great bodily
injury upon defendant or to use any type of lethal force.11 The only force defendant
10 We realize, of course, that an assailed person has no duty to retreat and is entitled to
stand his ground or pursue the assailant until the danger of bodily injury or death has
passed, even if safety could have been achieved by retreating. (People v. Hughes (1951)
107 Cal.App.2d 487, 494; see also CALCRIM No. 505.) But nobody attacked defendant
and nobody displayed any weapons. There had only been a challenge to fight. And in
any event, we may consider defendant’s failure to leave when he had a chance, his re-
engagement with the victim, his refusal to disengage and his conduct in following the
victim into the street instead of leaving as evidence that defendant did not shoot the
victim because he was in fear of the immediate use of deadly force against him.
11In a petition for rehearing, defendant asserted the video shows Thammavongsa “raising
and lowering his arm in an angry gesture as the group surrounds defendant.” (Petn. for
28
faced is evidenced by Sisoukchaleun’s challenge, “ ‘Let’s fight’ ” and his preparation to
do so by taking off his shirt. While the dissent states the evidence “did not foreclose a
finding that Sisoukchaleun was the aggressor,” the evidence shows Sisoukchaleun’s
aggression was limited to a fight and defendant responded by following him into the
street and shooting him between the eyes; defendant’s use of force relative to the threat of
a fight was clearly excessive and unreasonable.
Indeed, defendant’s targeted, nearly point-blank gunfire reflected, as we have said,
a cold calculated effort to take Sisoukchaleun’s life. The exacting nature of defendant’s
strategically placed shots were not reflective of a panicked self-defensive response to
imminent lethal force about to be used against him.
Defendant asserts that he was “surrounded” at the recessed entrance by
Sisoukchaleun’s group, and the dissent states perhaps defendant went back into the
recessed entrance not to confront but to get his liquor. But the video shows that
defendant followed Sisoukchaleun’s group into the recessed area. They did not surround
him; rather, he put himself in their proximity. Moreover, after he retrieved his gun,
defendant never actually went back into the recessed entrance. He approached it, but
stood on the sidewalk, several feet away from the entrance, gesticulating. Meanwhile,
the woman who drove up in the truck walked past defendant and into the recessed area,
moving among the “group of hostile Crip affiliates” defendant now says he feared.
rehg., pp. 8-9.) We disagree. At the point defendant cites in the video, defendant walked
out from the recessed entry to meet Sisoukchaleun’s group on the sidewalk and words
were exchanged. Thammavongsa walked around defendant into the recessed entry.
Defendant turned and followed Thammavongsa, who raised his arm and hand toward the
glass, appearing to gesture to someone or something in the store. Thereafter, he stood
with his back to the glass and defendant stood facing Thammavongsa. Defendant’s back
was facing the rest of Sisoukchaleun’s group. It was only because defendant joined
Sisoukchaleun’s group in the entryway that they were around him. The video does not
show Thammavongsa making the gesture towards defendant he describes in his petition
for rehearing.
29
As noted, a person then came out of the recessed area, put his arm out, situated
himself in front of defendant and appears to have tried to get him to disengage.
Defendant, after pointing his finger at that person’s chest twice, walked around him and
followed Sisoukchaleun into the street. Defendant was neither surrounded by anyone at
that time, nor was he trying to get his liquor. Nor was he walking back to his truck, as
defendant now claims in his supplemental briefing. The video shows him walking
parallel to and a distance away from the truck, not toward the passenger door.
Critically, defendant’s claim of self-defense was inconsistent with the story he
early on said he was sticking to. During his interview with the police and the numerous
phone conversations defendant had with people from the jail, he claimed he was not the
shooter. He never made any claim of self-defense or indicated in any way that he felt
threatened.12 Defendant’s lies, concealment, and destruction of evidence evinced not
only his general consciousness of guilt, but more particularly, that he knew he had not
acted in self-defense. Given the evidence, we conclude that a reasonable jury would have
rejected defendant’s self-defense and imperfect self-defense arguments even if it had not
heard the testimony concerning defendant’s prior law enforcement contacts.
Lastly, we again note the gang overtones to this shooting. Self-defense is
unavailable where a defendant kills not because of fear of death or great bodily injury
alone, but also based on a desire to kill a rival because of gang-related animus. (People
v. Kaihea (2021) 70 Cal.App.5th 257, 266, citing People v. Nguyen (2015) 61 Cal.4th
1015, 1044 [self-defense available only where defendant acts based on fear alone].)
12 Defendant now argues he made these statements during his phone conversations
because they were not private and had he admitted shooting a Crip, he would have risked
retaliation. Defendant would have us ignore — and apparently asked the jury to ignore
— that his first opportunity to claim self-defense was when he spoke to the police.
Instead of telling police he acted in self-defense, however, he gave them the same story
he initially thought he could stick to — his truck was stolen and he was not involved.
30
Consistent with this principle, defendant’s jury was instructed: “The Defendant must
have believed there was imminent danger of death or great bodily injury to himself.
Defendant’s belief must have been reasonable and he must have acted only because of
that belief.” (CALCRIM No. 505, italics added.) The evidence simply does not support
a finding that defendant fired fatal shots between Sisoukchaleun’s eyes and into his torso
solely because he feared lethal force was about to be inflicted upon him.
Based on the totality of the evidence, we conclude that it is clear beyond a
reasonable doubt a rational jury would have still found defendant guilty of first degree
murder absent the gang expert’s objectionable case-specific testimonial hearsay. (Geier,
supra, 41 Cal.4th at p. 608.) There is no reasonable possibility that the error contributed
to the verdict. (Reese, supra, 2 Cal.5th at p. 671; Aranda, supra, 55 Cal.4th at p. 367.)
2. Possession of a Firearm by a Felon (§ 29800, subd. (a)(1))
The parties stipulated that defendant previously had been convicted of a felony.
There is no dispute that defendant possessed a firearm. The video shows defendant going
to the pickup truck to retrieve it. Witnesses testified that, in the midst of the altercation
with Sisoukchaleun in the street, defendant pulled out a gun. Manivong heard a woman
say, “ ‘He’s got a gun.’ ” Defendant then shot Sisoukchaleun twice.
This evidence established a violation of section 29800, subdivision (a)(1). There
is no reasonable possibility that the objectionable testimonial hearsay from the gang
expert contributed to the jury’s guilty verdict.
3. Firearm Enhancements (§§ 12022.53, subds. (b), (d), 12022.5, subd.
(a))
In the commission of murder, defendant personally and intentionally discharged a
firearm causing Sisoukchaleun’s death. Again, defendant did not dispute shooting
Sisoukchaleun. He only maintained that he did so in self-defense or imperfect self-
defense. Subdivision (l) of section 12022.53 provides that “[t]he enhancements specified
in this section shall not apply to the lawful use or discharge of a firearm . . . by any
31
person in lawful self-defense, lawful defense of another, or lawful defense of property, as
provided in Sections 197, 198, and 198.5.” However, the jury appropriately rejected
defendant’s claims of self-defense and imperfect self-defense and would have done so
without the inadmissible expert testimony given the evidence we recounted in our
discussion of defendant’s first degree murder conviction. There is no reasonable
possibility that the errors in the admission of the expert’s case specific testimonial
hearsay contributed to the true findings on the firearm enhancements.
4. Criminal Street Gang Enhancement (§ 186.22, subd. (b)(1))
To prove the section 186.22, subdivision (b)(1) enhancement, the People were
required to prove defendant committed the murder for the benefit of a criminal street
gang, and that he had the specific intent to assist, further, or promote criminal conduct by
gang members. (§ 186.22, subd. (b)(1); CALCRIM No. 1401; Gardeley, supra, 14
Cal.4th at pp. 616-617.) It is important to note that the case-specific testimonial hearsay
concerning defendant’s prior crimes and law enforcement contacts was introduced to
show that defendant was a Meadowview Bloods gang member. Yet, the prosecution
need not prove that a defendant is an active or current member of the gang to establish
the enhancement under section 186.22, subdivision (b)(1). (Sanchez, supra, 63 Cal.4th at
p. 698; People v. Bragg (2008) 161 Cal.App.4th 1385, 1402; In re Ramon T. (1997) 57
Cal.App.4th 201, 207.) Evidence of gang membership helps establish a defendant’s
intent to assist, further, or promote criminal conduct by gang members, but it is not an
element of the enhancement. (Sanchez, at pp. 698-699.)
More concerning is the issue of the predicate offenses (§ 186.22, subd. (e))
required to prove the “pattern of criminal gang activity” element (§ 186.22, subd. (f)). As
stated ante, the gang expert’s testimony about the predicate offenses committed by three
Meadowview Bloods gang members was case-specific hearsay, as the expert had no
32
personal, firsthand knowledge about those facts, and thus this testimony was improperly
admitted.
The record does contain certified court records for the convictions the three
individuals sustained as a result of the incident about which the expert testified. Those
certified court records were independently admissible and, as a general matter, could be
competent evidence to prove the predicate offenses. (Evid. Code, § 452.5.) However,
the facts to be gleaned from those records do not supply sufficient proof of a predicate
offense.
According to the certified court records, one of the three individuals, England, was
convicted only of active participation in a criminal street gang. (§ 186.22, subd. (a).)
However, this is not one of the enumerated offenses that can qualify as a predicate
offense under subdivision (e) of section 186.22.
Another individual, Nase, was convicted of both active participation in a criminal
street gang (§ 186.22, subd. (a)) and battery (§ 243, subd. (d)). Neither of these
convictions is a predicate offense under subdivision (e) of section 186.22.
The third individual, Love, was convicted of offenses enumerated in subdivision
(e) of section 186.22. Among other things, Love was convicted of first degree burglary
(§ 459), which is set forth in subdivision (e)(11) of section 186.22, and assault by means
of force likely to cause great bodily injury (§ 245, former subd. (a)(1)), enumerated at
section 186.22, subdivision (e)(1). However, critically, as to every gang enhancement
allegation, alleging that Love committed his crimes for the benefit of, at the direction of,
or in association with a criminal street gang, specifically Meadowview Bloods, the jury
found the allegations not true. Additionally, the jury found Love not guilty of active
participation in a criminal street gang. (§ 186.22, subd. (a).) Thus, while the certified
court records establish Love was convicted of offenses enumerated in section 186.22,
subdivision (e), they do not establish, independent of gang expert’s testimony, that he did
so as a member of the Meadowview Bloods. The gang expert’s testimony that Love was
33
a Meadowview Bloods member could not furnish this missing element because there is
no reason to conclude on this record that it was based on anything other than inadmissible
case-specific hearsay like the rest of his testimony on this subject.
Thus, there is not sufficient evidence to satisfy the predicate offense requirement
(§ 186.22, subd. (e)) to prove a pattern of criminal gang activity (§ 186.22, subd. (f)) and
to support the true finding on the gang enhancement allegation (§ 186.22, subd. (b)(1)).
As a result, we cannot find the error in admitting the gang expert’s case-specific hearsay
testimony about the predicates was harmless beyond a reasonable doubt. (Chapman,
supra, 386 U.S. at p. 24.) The gang enhancement allegation true finding must be
reversed. In light of this determination, we need not further address whether defendant
was prejudiced by the gang expert’s case-specific hearsay testimony concerning
defendant’s prior crimes and police contacts.
5. Prejudice—Conclusion
Given the eyewitness testimony, video surveillance recording, and defendant’s
post-offense statements and conduct, it is clear beyond a reasonable doubt that a rational
jury would have found the defendant guilty of this cold blooded deliberate and
premeditated murder and of being a felon in possession of a firearm, and found the
firearm enhancement allegations true, absent the errors. (Livingston, supra, 53 Cal.4th at
p. 1159; Geier, supra, 41 Cal.4th at p. 608.) We conclude beyond a reasonable doubt that
defendant suffered no prejudice as to the substantive charges or the firearm enhancement
allegations based on the admission of the gang expert’s case-specific testimonial
hearsay.13 The error here did not contribute to the first degree murder verdict, the
13“ ‘[A] court need not determine whether counsel’s performance was deficient before
examining the prejudice suffered by the defendant as a result of the alleged deficiencies.’
” (People v. Carrasco (2014) 59 Cal.4th 924, 982 (Carrasco), quoting Strickland v.
Washington (1984) 466 U.S. 668, 697 [80 L.Ed.2d 674] (Strickland).) Thus, we need not
34
firearm possession verdict, or the firearm enhancement true findings, and thus the People
have satisfied their burden of establishing that the errors were harmless beyond a
reasonable doubt in relation to these matters. However, as we have explained, in the
absence of competent proof to establish the existence of at least one additional predicate
offense (§ 186.22, subd. (e)) in addition to the charged offenses, there is insufficient
evidence to establish the “pattern of criminal gang activity” element (§ 186.22, subd. (f))
of the gang enhancement allegation (§ 186.22, subd. (b)(1)). Accordingly, defendant was
prejudiced as to the gang enhancement allegation, the true finding on which we must
reverse.
II. Instructional Error Claim—Prior Uncharged Misconduct
Defendant contends that the trial court’s instructions allowed the jurors to consider
evidence of his prior offenses as substantive evidence, and invited the jurors to employ
this evidence to draw impermissible inferences of intent and motive as well as criminal
propensity. Defendant argues limiting instructions were required. He asserts that these
errors were prejudicial and rendered his trial fundamentally unfair.
We conclude that the trial court was not required to provide additional limiting
instructions sua sponte, and the instructions it provided were correct on the law.
A. CALCRIM Nos. 332 and 1403 and Defendant’s Contentions
Defendant’s contentions focus on the language we have italicized below in two
jury instructions, CALCRIM No. 332 on evaluating expert testimony, and CALCRIM
No. 1403 on the limited purpose of gang evidence.
address defendant’s contentions that counsel’s performance fell below an objective
standard of reasonableness based on failure to make timely and specific objections under
these provisions of the Evidence Code. Having concluded beyond a reasonable doubt
that defendant did not suffer prejudice under the stricter Chapman standard on all charges
and enhancements other than the gang enhancement, defendant could not possibly
demonstrate prejudice under the less stringent Strickland standard applicable to
ineffective assistance of counsel claims. And, of course, any additional prejudice as to
the gang enhancement is superfluous in light of our determination.
35
Regarding CALCRIM No. 332, in pertinent part the court told the jury: “In
evaluating the believability of an expert witness, follow the instructions about the
believability of witnesses generally. In addition, consider the expert’s knowledge, skill,
experience, training, and education, the reasons the expert gave for any reason, [sic][14]
and the facts or information on which the expert relied in reaching that opinion. [¶] You
must decide whether information on which the expert relied was true and accurate. You
may disregard any opinion that you find unbelievable, unreasonable, or unsupported by
the evidence.” (CALCRIM No. 332, as given, italics added.)
Regarding CALCRIM No. 1403, in pertinent part, the court instructed the jury:
“You may consider evidence of gang activity only . . . for the limited purpose of deciding
whether the defendant acted with the intent, purpose and knowledge that are required to
prove the gang-related enhancement charged or that the defendant had a motive to
commit the crime charged. [¶] You may also consider this evidence when you evaluate
the credibility or believability of a witness and when you consider . . . the facts and
information relied on by an expert witness in reaching his opinion. [¶] You may not
consider this evidence for any other purpose. You may not conclude from this evidence
that the defendant is a person of bad character or that he has a disposition to commit
crime.” (Italics added.)
Defendant contends that the combined effect of CALCRIM Nos. 332 and 1403
was to invite the jury to consider the gang expert’s basis testimony regarding defendant’s
prior crimes and police contacts as substantive evidence to establish the gang
enhancement mens rea elements and motive to commit the crime. This, according to
14The written instructions provided to the jury accurately states: “the reasons the expert
gave for any opinion . . . .” (Italics added.) Defendant appropriately does not complain
about this discrepancy on appeal. “ ‘To the extent a discrepancy exists between the
written and oral versions of jury instructions, the written instructions provided to the jury
will control.’ ” (People v. Mills (2010) 48 Cal.4th 158, 201.)
36
defendant, is the combined effect of the language in CALCRIM No. 332 telling the jurors
to “decide whether information on which the expert relied was true and accurate” and
language in CALCRIM No. 1403 telling the jurors they could consider gang activity
evidence for the purposes of determining defendant’s intent, purpose, and knowledge
required for the gang enhancement or motive to commit the crime, coupled with the
failure to instruct the jurors that they could not consider the expert’s basis testimony for
the truth. Defendant complains the jury should not have been allowed to use the expert’s
basis testimony related to the prior crimes in which defendant was involved for either of
the purposes mentioned in CALCRIM No. 1403 because the evidence was not admitted
for these purposes. Rather, the expert’s testimony concerning defendant’s prior crimes
was allowed only to show the information upon which the expert’s opinion regarding
defendant’s gang affiliation was based. Defendant also contends the instructions invited
the jury to use other crimes evidence to draw an impermissible propensity inference
about his character. We address the latter contention first.
B. Analysis
1. Propensity Contention
Defendant appears to complain that the jury should have been instructed that it
could not infer from the expert’s prior crime testimony that defendant acted in conformity
with a character trait for violence. However, as defendant acknowledges, the trial court
was not required to give an “ ‘other crimes’ ” evidence instruction sua sponte. (People v.
Cottone (2013) 57 Cal.4th 269, 293; People v. Nottingham (1985) 172 Cal.App.3d 484,
497 (Nottingham).) The California Supreme Court has “ ‘consistently held that where . . .
a defendant fails to request an instruction, a trial court “generally [has] no duty to instruct
on the limited admissibility of evidence.” ’ ” (People v. Maciel (2013) 57 Cal.4th 482,
529, quoting People v. Valdez (2012) 55 Cal.4th 82, 139, People v. Lang (1989) 49
Cal.3d 991, 1020, & Evid. Code, § 355 [“When evidence is admissible . . . for one
37
purpose and is inadmissible . . . for another purpose, the court upon request shall restrict
the evidence to its proper scope and instruct the jury accordingly” (italics added)].)
Nevertheless, as defendant correctly notes, “[e]ven if the court has no sua sponte
duty to instruct on a particular legal point, when it does choose to instruct, it must do so
correctly.” (People v. Castillo (1997) 16 Cal.4th 1009, 1015.) Further, “[e]ven if such an
instruction is not required, when a trial court does undertake to give a limiting instruction
specifically calling attention to the significance of the substantially prejudicial evidence
of prior bad acts, it should do so accurately.” (Nottingham, supra, 172 Cal.App.3d at
p. 497.) Defendant implies the instructions provided here were inaccurate. We disagree.
The limiting instruction in CALCRIM No. 1403 was not inaccurate or incorrect on the
law.
The case on which defendant relies as an example of inaccurate instructions
allowing a jury to draw an impermissible inference of criminal propensity is not helpful
to him. In People v. Garceau (1993) 6 Cal.4th 140, 156, 163 (Garceau), disapproved on
other grounds in People v. Yeoman (2003) 31 Cal.4th 93, 117-118, evidence was
introduced that the defendant, charged with killing Maureen Bautista and her son
Telesforo, also committed the uncharged murder of the defendant’s associate, Greg
Rambo. (Garceau, at pp. 163-165.) The trial court instructed the jury that it could
consider the other crimes evidence, if believed, “ ‘for any purpose, including but not
limited to any of the following: [¶] [Defendant’s] character or any trait of his
character. . . .’ ” (Id. at pp. 185-186, italics omitted & italics added.) On appeal, the
People conceded that this instruction was “overbroad.” (Id. at p. 186.) The California
Supreme Court concluded that the trial court erred in giving the italicized portion of the
instruction, observing that, subject to certain inapplicable exceptions, “evidence
pertaining to a defendant’s character is inadmissible when offered to prove the
defendant’s conduct on a specific occasion.” (Ibid., citing Evid. Code, § 1101, subd. (a).)
Our high court stated that this instruction “impermissibly invited the jury to consider
38
certain evidence (e.g., that defendant killed Rambo) for the purpose of establishing
defendant’s propensity to commit murder.” (Garceau, at p. 186.) The court continued:
“Assuming the jury considered such evidence in that context, the jury arguably might
have inferred that because defendant had killed Rambo, defendant also was capable of
killing other friends, such as Maureen and Telesforo Bautista. If the jury drew that
inference, the prosecution’s burden of proof as to the central issue in the case, the identity
of the Bautistas’ slayer, arguably was lightened, thus raising the possibility that
defendant’s constitutional right to due process of law was impaired.” (Ibid.)
The instruction given in Garceau expressly invited the jury to consider evidence
of uncharged crimes as proof of the defendant’s character and his propensity to commit
murder. Here, no such instruction was given; the jury was not told it could consider any
evidence to establish defendant’s criminal propensity to commit murder or any other
crime.
CALCRIM No. 1403 did not focus on other crimes evidence; rather, the focus was
more broadly related to gang activity evidence. The evidence of gang activity included
the testimony of the witnesses, including their testimony about the gang-related
statements defendant made prior to the murder, defendant’s phone conversations while he
was in jail, his tattoo, and the gang expert’s testimony about gang culture. The gang
activity evidence, of course, also included the expert’s opinion about defendant’s
Meadowview Bloods membership, which was based, in part, on defendant’s phone
conversation in the jail, his tattoo, and his conduct during the charged offense, as well as
the circumstances of defendant’s prior crimes.15 CALCRIM No. 1403 limited the
15Defendant does not assert in his post-transfer briefing that the jury should not have
considered the evidence of his prior crimes because it was inadmissible under Valencia,
supra, 11 Cal.5th 818. Any such contention is forfeited. (See People v. Rangel (2016)
62 Cal.4th 1192, 1218 [failure to raise claim at any time prior to reply brief forfeited];
39
purpose for which the jury could consider the totality of the gang activity evidence to a
determination of the intent, purpose and knowledge required to prove the gang-related
enhancement, the motive to commit the murder, an evaluation of the credibility of
witnesses and a consideration of the facts and information relied on by the expert witness
in reaching his opinion. The instruction expressly told the jury: “You may not consider
this evidence for any other purpose. You may not conclude from this evidence that the
defendant is a person of bad character or that he has a disposition to commit crime.”
(Italics added.) Thus, as the italicized text reflects, the jury was expressly told not to
draw an impermissible criminal propensity inference from any of the gang activity
evidence. This necessarily included the expert’s basis testimony. We presume the jury
followed these instructions. (People v. Letner and Tobin (2010) 50 Cal.4th 99, 196
(Letner and Tobin).) Accordingly, we reject defendant’s contention that the instructions
impermissibly directed the jurors to consider the other crimes evidence upon which the
expert relied in opining that defendant was a Meadowview Blood as evidence that
defendant had criminal propensities and that he acted in conformity therewith on this
particular occasion.
To the extent that these proper instructions somehow could have been understood
to allow the jury to draw an impermissible criminal propensity inference from the gang
expert’s basis testimony about defendant’s prior crimes and such an inference could have
been prevented by an additional limiting instruction, it was incumbent upon the defense
to request that such an instruction be provided. A party may not complain on appeal that
an instruction correct in law and responsive to the evidence was too general or
incomplete unless the party has requested appropriate clarifying or amplifying language.
Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785 [“When an appellant fails
to raise a point, or asserts it but fails to support it with reasoned argument and citations to
authority, we treat the point as waived”].)
40
(People v. Jones (2013) 57 Cal.4th 899, 969 [to the extent court’s instruction on other
crimes evidence was incomplete, defendant may not be heard to complain because he did
not request clarifying language].) Thus, any instruction specifically telling the jury not to
infer criminal propensity from the gang expert’s basis testimony about defendant’s prior
crimes and police contacts was one that the defense should have requested. The trial
court was not required to provide such an instruction sua sponte.
2. Other Crimes Evidence and Proof of Mens Rea Elements and Motive
Defendant contends that, based on the instructions given and the absence of an
additional limiting instruction, the jurors were permitted to use the other crimes evidence
as substantive evidence of the gang enhancement mens rea elements and motive. As we
understand the argument, defendant essentially contends that the gang expert’s basis
testimony regarding defendant’s prior offenses was allowed to be used as Evidence Code
section 1101, subdivision (b) evidence. (See fn. 15, ante.) We disagree. The jury was
properly permitted to consider the evidence of gang activity, including the expert’s
opinion that defendant was a member of a criminal street gang, as evidence that
defendant “acted with the intent, purpose and knowledge that are required to prove the
gang-related enhancement charged; [¶] OR [¶] [that] the defendant had a motive to
commit the crime charged.”
Defendant’s contention appears to be grounded on a combination of the fact that
the jury was not instructed that the gang expert’s basis testimony could not be considered
for the truth, but was instructed, as set forth in CALCRIM No. 332, to decide whether
information upon which the expert relied was true and accurate. But defendant ignores
the limited purpose for which the jury was instructed to consider the truth and accuracy
of the information upon which the expert relied. CALCRIM No. 332 expressly relates to
evaluating the believability and credibility of expert testimony. The instruction told the
jury to “consider the expert’s knowledge, skill, experience, training and education, the
reasons the expert gave for any opinion, and the facts or information on which the expert
41
relied in reaching that opinion.” (Italics added.) The instruction then told the jury to
decide whether the information upon which the expert relied was true and accurate, and
ended by telling the jurors they may disregard any opinion they find unsupported by the
evidence. CALCRIM No. 332 was given as part of the witness credibility instructions
and does not imply application beyond the believability and credibility of the expert
witness. It says nothing about the charges or allegations. In light of this, we reject
defendant’s contention that the instructions allowed the jury to consider the gang expert’s
basis testimony concerning defendant’s prior offenses as substantive evidence that could
be used to establish the gang enhancement mens rea elements or defendant’s motive for
shooting Sisoukchaleun.
3. Prejudice
As we have stated ante, the evidence against defendant establishing both his
motive for the murder and the gang enhancement was very compelling. It is undisputed
that defendant shot Sisoukchaleun twice, once at nearly point-blank range between the
eyes and once at close range in the torso, killing him. The witness testimony established
that the shooting was preceded by words amounting to a gang challenge. The primary
issue at trial was whether defendant acted in self-defense. The witness testimony and
surveillance video completely refuted defendant’s claim of self-defense. Defendant
denied being involved to the police and people he knew. Instead, he claimed his truck
had been stolen and he never said anything about self-defense, even when talking on the
phone to people he knew. Under any standard, the purported errors about which
defendant complains were harmless.
4. Ineffective Assistance of Counsel
Defendant asserts that counsel was ineffective for failing to request a limiting
instruction directing the jury that the evidence of his prior offenses on which the gang
expert relied in forming his opinion was not to be considered for its truth. He complains
that the failure to do so allowed the jury to consider the other crimes evidence for
42
purposes other than the “arguably proper purpose of explaining the basis of the expert’s
opinion concerning [defendant]’s gang affiliation.”
To prevail on a claim of ineffective assistance of counsel, a defendant must show
(1) counsel’s performance fell below an objective standard of reasonableness under
prevailing professional norms, and (2) the deficient performance prejudiced defendant.
(Strickland, supra, 466 U.S. at pp. 691-692; People v. Ledesma (1987) 43 Cal.3d 171,
216-217 (Ledesma); People v. Rogers (2016) 245 Cal.App.4th 1353, 1367.)
“ ‘Surmounting Strickland’s high bar is never an easy task.’ ” (Harrington v. Richter
(2011) 562 U.S. 86, 105 [178 L.Ed.2d 624, 642] (Richter), quoting Padilla v. Kentucky
(2010) 559 U.S. 356, 371 [176 L.Ed.2d 284, 297].)
Where we may dispose of a party’s ineffective assistance of counsel contention
based on the lack of sufficient prejudice, we need not address the deficient performance
prong. (Carrasco, supra, 59 Cal.4th at p. 982.) Here, we proceed directly to the
prejudice prong. For the same reason we conclude that any error was harmless under any
standard, we also conclude that defendant failed to establish the prejudice prong of his
ineffective assistance of counsel claim. In light of the evidence discussed ante, as well as
the instructions the trial court did give to the jury, we conclude that there is no reasonable
probability that, had counsel requested a limiting instruction of the type defendant
identifies here, defendant would have achieved a more favorable result. (Strickland,
supra, 466 U.S. at pp. 693-694; Ledesma, supra, 43 Cal.3d at pp. 216-217.) Therefore,
we conclude that defendant did not suffer prejudice as a result of any deficiency on trial
counsel’s part in failing to request such a limiting instruction.
III. Mutual Combat/Initial Aggressor Instructions
Defendant contends there is a reasonable likelihood the jury interpreted the self-
defense instructions related to mutual combat and initial aggressor status in a legally
incorrect manner. He also contends there was insufficient evidence to support the
instruction. We disagree.
43
A. CALCRIM No. 3471 and Defendant’s Contentions
CALCRIM No. 3471, as given by the trial court here, instructed, in pertinent part,
that a “person who engages in mutual combat or who starts a fight,[16] has a right to self-
defense only if, One, he actually and in good faith, tried to stop fighting. [¶] Two, he
indicated by word or by conduct, to his opponent in a way that a reasonable person would
understand, that he wanted to stop fighting, and that he had stopped fighting. [¶] Three,
he gave his opponent a chance to stop fighting. [¶] If the defendant meets these
requirements, he then had a right to self-defense, if the opponent continued to fight. [¶]
A fight is mutual combat when it began or continued by mutual consent or agreement.
[¶] That agreement may be expressly stated or implied and must occur before the claim
to self-defense arose.” (Italics added.)
Defendant contends that it is reasonably likely the jury interpreted the court’s
instruction on self-defense “in a legally incorrect manner that impaired [defendant]’s
claim of self-defense and lowered the prosecution’s burden of proof.” Specifically,
defendant claims that the jury could have interpreted the portion of CALCRIM No. 3471
that reads “ ‘who starts a fight’ ” to mean starting a verbal argument or quarrel, as
opposed to a physical fight. If the jury misinterpreted the instruction in this manner, then
the jury could have concluded, contrary to law, that defendant had no right of self-
defense because he initiated a verbal argument. Defendant also asserts that substantial
evidence did not support the conclusion that he initiated a physical fight, and, therefore,
that portion of the instruction should not have been given. According to defendant, by
erroneously instructing the jury on self-defense, the court impaired his right to present a
defense and lowered the prosecution’s burden of proof.
16The language “engages in mutual combat” and “starts a fight” is optional in
CALCRIM No. 3471. One term can be used without the other or the two terms can be
used together.
44
B. Analysis
1. Forfeiture
At trial, defendant did not request language to clarify the self-defense instruction.
He also did not object to the proposed instruction. By failing to either object to the
proposed instruction or request that clarifying language be added, defendant has forfeited
his claim on appeal. (People v. Valdez (2004) 32 Cal.4th 73, 113 (Valdez).) We are not
persuaded by defendant’s argument in his reply brief that he did not forfeit his claim
because the instruction given by the trial court contained an incorrect statement of law;
CALCRIM No. 3471 as given was a correct statement of law. In any event, as we shall
discuss, defendant’s contentions fail on the merits.
2. Substantial Evidence Supporting the Instruction
As defendant notes, “instructions not supported by substantial evidence should not
be given.” (People v. Ross (2007) 155 Cal.App.4th 1033, 1050 (Ross); People v.
Marshall (1997) 15 Cal.4th 1, 39-40.) “ ‘It is error to give an instruction which, while
correctly stating a principle of law, has no application to the facts of the case.’ ” (Ross, at
p. 1050, quoting People v. Guiton (1993) 4 Cal.4th 1116, 1129.) Defendant contends
there was no evidence to support giving CALCRIM No. 3471.
There was substantial evidence that defendant and Sisoukchaleun exchanged
gang-related fighting words near the entrance to Sunland. After obtaining his gun from
his pickup, defendant then returned to sidewalk facing the crowd near the front of
Sunland where he resumed and escalated his confrontation with Sisoukchaleun and his
group. Sisoukchaleun removed his outer shirt, apparently believing the two would fight.
According to Thammavongsa, as matters escalated and Sisoukchaleun took his shirt off,
Sisoukchaleun said, “ ‘What’s up? Let’s fight. Let’s fight.’ ” Defendant did not say
anything in response. After walking around a person who tried to stop him, defendant
followed Sisoukchaleun into the street. Sisoukchaleun took a swing at defendant, who
dodged the blow. Defendant then shot Sisoukchaleun.
45
As the People assert, if defendant did not start the fight within the meaning of
CALCRIM No. 3471, substantial evidence supports the premise that he engaged in
mutual combat. “Evidence is ‘[s]ubstantial’ . . . if it is ‘sufficient to “deserve
consideration by the jury,” that is evidence that a reasonable jury could find
persuasive.’ ” (Ross, supra, 155 Cal.App.4th at pp. 1050-1051.) It could be reasonably
inferred from the evidence that “both combatants actually consented or intended to fight
before the claimed occasion for self-defense arose.” (Id. at p. 1047, italics omitted.)
Thus, substantial evidence supported the instruction.
3. CALCRIM No. 3471
Defendant contends there is a reasonable probability the jurors interpreted the
word “fight” in CALCRIM No. 3471 to be synonymous with the word “quarrel.” “ ‘The
meaning of instructions is no[t] . . . determined under a strict test of whether a
“reasonable juror” could have understood the charge as the defendant asserts, but rather
under the more tolerant test of whether there is a “reasonable likelihood” that the jury
misconstrued or misapplied the law in light of the instructions given, the entire record of
trial, and the arguments of counsel.’ ” (People v. Mathson (2012) 210 Cal.App.4th 1297,
1312 (Mathson).) This review requires that we look not only at the challenged
instruction, but also at the instructions as a whole in the context of the entire trial record.
(People v. Mejia (2012) 211 Cal.App.4th 586, 617.) “ ‘ “Instructions should be
interpreted, if possible, so as to support the judgment rather than defeat it if they are
reasonably susceptible to such interpretation.” ’ ” (Mathson, at p. 1312.)
We first look to the other parts of CALCRIM No. 3471 and how the word “fight”
is used therein. In context, it is unreasonable to read the word “fight” to mean an
argument or verbal quarrel. The instruction lists three conditions when a person who
engages in mutual combat or starts a fight has the right to use self-defense: “1. He
actually and in good faith tried to stop fighting; [¶] 2. He indicated, by word or by
conduct, to his opponent, in a way that a reasonable person would understand, that he
46
wanted to stop fighting and that he had stopped fighting; [¶] AND [¶] 3. He gave his
opponent a chance to stop fighting.” (Italics added.) The instruction goes on to say: “If
the defendant meets these requirements, he then had a right to self-defense if the
opponent continued to fight.” (Italics added.) The instruction further states that “[a] fight
is mutual combat when it began or continued by mutual consent or agreement.” (Italics
added.) In context, these references to the word “fight” in CALCRIM No. 3471 must be
understood to mean a physical fight. No reasonable juror could interpret the word
“fight,” as used here, to mean a verbal argument.
To test defendant’s contention that “fight” could be read to mean “argument,” we
shall look at how the instruction would read if the word “argue” or a derivative thereof
were substituted for the word “fight.” This reveals the absurdity of defendant’s
argument. Substituting the word “fight” with “argue” or a derivative thereof, the
instruction would list three conditions when a person who engages in mutual combat or
starts an argument has the right to use self-defense: “1. He actually and in good faith
tried to stop [arguing]; [¶] 2. He indicated, by word or by conduct, to his opponent, in a
way that a reasonable person would understand, that he wanted to stop [arguing], and that
he had stopped [arguing]; [¶] AND [¶] 3. He gave his opponent a chance to stop
[arguing].” (Italics added.) The instruction would then go on to read: “If the defendant
meets these requirements, he then had a right to self-defense if the opponent continued to
[argue].” (Italics added.) As for the definition of mutual combat in the instruction,
substituting the word “fight” with “argument,” mutual combat would essentially be
defined: an “argument” is mutual combat when it began or continued because the parties
agreed to “argue.” This exercise demonstrates that the word “fight” as used in
CALCRIM No. 3471 is obviously not synonymous with “argue” or a verbal quarrel.
Looking at the instructions as a whole, we next look to CALCRIM No. 3472.
Whereas CALCRIM No. 3471 does not use the word “argue” or “quarrel” or speak to any
such conduct, CALCRIM No. 3472 does use the word “quarrel,” and it does so in a way
47
that conveys a different meaning than the word “fight.” Per CALCRIM No. 3472, the
trial court instructed the jury, “A person does not have the right to self-defense if he
provokes a fight or a quarrel with the intent to create an excuse to use force.” (Italics
added.) The absence of the word “quarrel” in CALCRIM No. 3471 and the presence of
that word in CALCRIM No. 3472 thus signals to reasonable jurors that the word “fight”
does not mean an “argument” or “quarrel,” and where reference to a verbal altercation is
intended, the term “quarrel” is used separately from the word fight.
Indeed, CALCRIM No. 3472 demonstrates that provoking a “quarrel” or “fight”
are two different acts of conduct. CALCRIM No. 3472 instructs that either or both acts
could preclude a claim of self-defense if done with the intent to create an excuse to use
force. People v. Eulian (2016) 247 Cal.App.4th 1324 (Eulian) provides an example of
the applicability of the instruction in the context of a quarrel. The Eulian court held that
CALCRIM No. 3472 was properly given under the facts of that case. (Eulian, at
pp. 1332-1335.) In doing so, the court reasoned that the jury could have rationally
concluded that the defendant had provoked the conflict, and that he continued his verbal
aggression until the victim responded with physical force at which point the defendant
used physical force, eventually rendering the victim unconscious by delivering a series of
punches. (Id. at pp. 1328, 1334.)
The incident in Eulian began when the defendant started a quarrel. He walked up
to the victim’s vehicle to confront her about her practice of attracting feral cats by
feeding them. During this initial part of the confrontation, the defendant screamed at the
victim and jabbed his finger repeatedly toward her face. The victim leaned away, and
eventually threw cat food in his direction. (Eulian, supra, 247 Cal.App.4th at pp. 1326,
1334.) The defendant tried to grab the victim’s arm and pull her out of the vehicle, but
lost his grip. (Id. at p. 1328.) The defendant continued to argue with the victim and
gestured toward her, even as his mother tried to pull him away. (Id. at pp. 1328, 1334.)
The victim slapped the defendant and then traded slaps with the defendant’s mother. The
48
defendant then punched the victim twice, and at that same moment, the victim kicked at
the defendant’s mother. (Id. at p. 1328.) The defendant then yanked the victim out of the
car and delivered two punches while she was on the ground, rendering her unconscious.
(Ibid.) Thus, the defendant initiated a quarrel that escalated into a physical confrontation.
The Eulian court held: “[a]ssuming defendant is correct that he and his mother were
kicked by [the victim], if the jury determined that [the victim] did so in response to
defendant’s aggressive conduct, defendant did not have the right to use force to settle a
physical confrontation he arguably created.” (Id. at p. 1334.) The court held that the
defendant’s conduct provided a factual basis for CALCRIM No. 3472.17 (Eulian, at
p. 1334.)
Looking at the instructions as a whole and considering the absurd construction
defendant advances of the word “fight” in CALCRIM No. 3471, we conclude that no
reasonable juror would have interpreted the word “fight” in CALCRIM No. 3471 to be
synonymous with the word “quarrel.”
4. The Prosecutor’s Arguments
Our review of the instruction includes an examination of the prosecutor’s
argument to the jury. (Mathson, supra, 210 Cal.App.4th at p. 1330.) The prosecutor did
not misuse CALCRIM No. 3471 in closing argument or tell the jury that the conditions in
CALCRIM No. 3471 could apply if the jurors concluded defendant simply started an
argument or quarrel. Instead, the prosecutor properly argued the principle in CALCRIM
No. 3472 that self-defense cannot be contrived by initiating a quarrel with the intent to
create an excuse to use force and that self-defense is not available to a person who
engages in mutual combat or starts a fight unless the three conditions are met. In
discussing self-defense, the prosecutor told the jury: “Not available if you seek a quarrel
17As given, the instruction in Eulian was modified in a way not relevant here. (Eulian,
supra, 247 Cal.App.4th at p. 1333.)
49
with the intent to create the necessity for self-defense. And not available to mutual
combatants, unless you withdraw. [¶] If you start the fight, if this is mutual combat, you
don’t get self-defense unless you’ve satisfied those conditions, which we know didn’t
happen in this case.” The prosecutor then argued: “[S]elf-defense is 100 percent
reactionary, right? You can’t contrive it. You can’t set up the circumstances that then
requires you to use self-defense, you can’t start the quarrel. It has to be reactionary. And
that was not the case here.” Thus, the prosecutor said nothing in his argument to cause
the confusion defendant claims results from the wording of CALCRIM No. 3471.
5. Conclusion
We conclude that defendant’s claim of prejudicial error in connection with
CALCRIM No. 3471 is without merit.
IV. Antecedent Threats Instruction
Defendant asserts that the court’s instruction on antecedent threats failed to inform
the jury that a defendant who reasonably associated the victim with a prior shooting in
which the defendant was wounded is justified in acting more quickly and with greater
self-defense measures. He claims that he requested such an instruction, but the court
failed to include the instruction. According to defendant, the instruction the court gave
pertaining to this principle did not conform with the evidence presented to the jury. He
further claims that, had an appropriate instruction been given, there is a reasonable
probability that the jury would have acquitted him of murder.
We conclude that defendant forfeited this claim. In any event, we conclude that
any error was harmless. We further conclude that defendant has failed to show he
received constitutionally ineffective assistance of counsel.
A. Additional Background
Defense counsel e-mailed the court and the prosecutor about adding certain
language to CALCRIM No. 505 (Justifiable Homicide: Self-Defense or Defense of
Another). Counsel wanted language added to that instruction to explain that one who has
50
been harmed or threatened by a group will be justified in acting more quickly and taking
harsher measures for his or her own protection provided that the person reasonably
associated the victim with that harm or threat.18
In a reply e-mail, the prosecutor opposed the addition as inapplicable to the
circumstances of this case. Among other things, he noted that there was no evidence that
defendant ever knew anyone in Sisoukchaleun’s group. The prosecutor also emphasized
that the incident when defendant was shot in the back, allegedly by a Crip, occurred 21
years prior to the events in this case.
The trial court included the following optional bracketed paragraphs in a draft of
CALCRIM No. 505 for purposes of discussion with counsel. “[Someone who has been
threatened or harmed by a person in the past, is justified in acting more quickly or taking
greater self-defense measures against that person.] [¶] [If you find that the defendant
received a threat from someone else that (he/she) reasonably associated with , you may consider that threat in deciding whether the
defendant was justified in acting in (self-defense/ [or] defense of another).]” (See
CALCRIM No. 505.)
At the instruction conference, the court asked defense counsel about her position
on the instruction. Counsel asked the trial court to give the instruction she had e-mailed
to the court based on the evidence indicating that defendant had been shot by a Crip when
he was 15 years old, and the victim here having identified himself as a Crip.
18 The proposed instruction in trial counsel’s e-mail read as follows: “One who has been
harmed by or received threats against [his] [her] life or person made by [a group] [or] [a
person other than the victim] is justified in acting more quickly and taking harsher
measures for [his] [her] own protection in the event of assault either actual or threatened,
than would be a person who had not received such threats provided the person receiving
the threats reasonably associated the victim with those threats.” (Italics added.)
51
The prosecutor asserted that the jury should not be instructed with either
paragraph, arguing that these instructions were not warranted based on the facts of this
case. According to the prosecutor, the claim made by defendant on the jailhouse call that
he was shot by a Crip when he was 15 could not justify this instruction, so many years
later, simply because Sisoukchaleun identified himself as a Crip. The prosecutor asserted
that this connection was too attenuated to warrant the instruction. Defense counsel
countered that the shooting of defendant by a Crip when he was 15 was relevant to
defendant’s “feeling on that day when he’s surrounded by people of a rival gang,” and
that these circumstances “should allow [defendant] to react more quickly than someone
who hadn’t been put through that.”
The court expressed some reluctance about instructing the jury with these
paragraphs from CALCRIM No. 505 because defendant had not received a threat from
anyone. However, defense counsel convinced the court that, if a mere past threat from a
particular group can be taken into consideration in assessing whether a defendant acted in
self-defense, by even greater force of reason, the fact that one had actually been shot by a
member of a particular group may be considered. The court was skeptical as to whether
substantial evidence supported the “reasonably associated” portion of the instruction.
The court stated that it was inclined to issue the second bracketed paragraph, but not the
first.
The following colloquy then took place:
“[DEFENSE COUNSEL]: But not the one above it?
“THE COURT: Yeah, it doesn’t seem to make sense. I guess someone who has
been threatened --
“[DEFENSE COUNSEL]: And that’s fine. I’m not asking for the one above it. I
want the second paragraph.”
All agreed to the instruction. As given, the instruction did not include the
principle that having been harmed in the past by someone reasonably associated the
52
victim, a person is justified in acting more quickly or taking greater self-defense
measures.19
In closing argument, defense counsel argued self-defense, telling the jury: “one of
the most important things, too, you can look at is, if you find the defendant received a
threat from someone else that he reasonably associated with the victim, you may consider
that threat in deciding whether the defendant was justified.” She then went on to talk
about the evidence establishing that defendant had been shot by Crips when he was 15
19 The court instructed the jury with CALCRIM No. 505 as follows: “The defendant is
not guilty of murder or manslaughter if he was justified in killing someone in self-
defense. The defendant acted in lawful self-defense if, Number One, the defendant
reasonably believed that he was in imminent danger of being killed or suffering great
bodily injury. [¶] Two, the defendant reasonably believed that the immediate use of
deadly force was necessary to defend against that danger. [¶] And Three, the defendant
used no more force than was reasonably necessary to defend against that danger. [¶]
Belief in future harm is not sufficient, no matter how great or how likely the harm is
believed to be. The defendant must have believed that there was imminent danger of
death or great bodily injury to himself. [¶] Defendant’s belief must have been
reasonable, and he must have acted only because of that belief. The defendant is only
entitled to use that amount of force that a reasonable person would believe is necessary in
the same situation. [¶] If the defendant used more force than was reasonable, the killing
was not justified. [¶] When deciding whether the defendant’s beliefs were reasonable,
consider all of the circumstances as they were known to and appeared to the defendant,
and consider whether a reasonable person in a similar situation with similar knowledge
would have believed. [¶] If the defendant’s beliefs were reasonable, the danger does not
have to actually exist yet. [¶] If you find that the defendant received a threat from
someone else that he reasonably associated with the victim/decedent, you may consider
that threat in deciding whether the defendant was justified in acting in self defense. [¶]
A defendant is not required to retreat. He is entitled to stand his ground and defend
himself. And if reasonably necessary, to pursue an assailant until the danger of death or
great bodily injury has passed. [¶] This is so, even if safety could have been achieved by
retreating. [¶] Great bodily injury means significant or substantial physical injury. It is
an injury that is greater than minor or moderate harm. [¶] The People have the burden of
proving beyond a reasonable doubt that the killing was not justified. If the People have
not met this burden, you must find the defendant not guilty of murder or manslaughter.”
(CALCRIM No. 505, as given, italics added.)
53
and asserted that when defendant shot Sisoukchaleun, there were five guys associated
with Sisoukchaleun standing around defendant.
B. Forfeiture
On appeal defendant does not argue that the specific language in the omitted
optional paragraph of CALCRIM No. 505 should have been given. Rather, he asserts
that the instruction given should have included similar language, to the effect that
defendant would have been justified in acting more quickly or taking greater self-defense
measures based on prior threats or harm reasonably associated with the victim. However,
defendant acquiesced to the omission of nearly identical language to that which he now
claims should have issued.
Defendant forfeited his claim. The failure to either object to the proposed jury
instruction or request the language defendant suggests on appeal forfeits the claim that
such language should have been included in the instruction. (Valdez, supra, 32 Cal.4th at
p. 113.) Following the e-mail exchange between the attorneys and the court, at the
instruction conference, defense counsel did not object to the CALCRIM No. 505
instruction to be given to the jury. In her e-mail, defense counsel had requested the
addition of the language similar to the optional bracketed language in CALCRIM
No. 505. However, at the instruction conference, defense counsel: (1) acquiesced in the
omission of the paragraph of CALCRIM No. 505 containing the “acting more quickly or
taking greater self-defense measures” language; (2) did not reaffirm her desire for the
language proposed in her e-mail; and (3) consented to the CALCRIM No. 505 instruction
as given. Having agreed to the instruction and having abandoned the request for
additional language, defendant forfeited his claim on appeal that the jury should have
been instructed with the language proposed by defense counsel in her pre-conference e-
mail.
54
C. Harmless Error
In any event, we conclude that, on this record, there is no reasonable probability
that a different result would have been obtained had the jury been instructed on self-
defense with the additional language proposed by defendant pertaining to antecedent
threats. (People v. Watson (1956) 46 Cal.2d 818, 835-836 (Watson).) “[T]he Watson test
for harmless error ‘focuses not on what a reasonable jury could do, but what such a jury
is likely to have done in the absence of the error under consideration. In making that
evaluation, an appellate court may consider, among other things, whether the evidence
supporting the existing judgment is so relatively strong, and the evidence supporting a
different outcome is so comparatively weak, that there is no reasonable probability the
error of which the defendant complains affected the result.’ ” (People v. Beltran (2013)
56 Cal.4th 935, 956 (Beltran).)
The trial court instructed the jury extensively on self-defense. The trial court
specifically instructed the jury: “If you find that the defendant received a threat from
someone else that he reasonably associated with the victim/decedent, you may consider
that threat in deciding whether the defendant was justified in acting in self defense.”
Thus, the jury rejected the claim that defendant acted in self-defense based on a threat—
his previously being shot by a Crip gang member—that he reasonably associated with
Sisoukchaleun.
As we have indicated, the evidence here overwhelmingly showed that defendant
did not act in self-defense. There is no evidence that Sisoukchaleun did anything more
threatening than taking off his shirt in preparation to engage defendant in a mutual fight.
Defendant ignored a person who appeared to try to get him to disengage, followed
Sisoukchaleun into the street, and, instead of fighting, after Sisoukchaleun took one wild
swing, shot Sisoukchaleun in the face at nearly point-blank range with a gun he had
retrieved from his vehicle moments before. Given this evidence and the other evidence
we have recounted, there is no reasonable probability that defendant would have obtained
55
a more favorable outcome had the jury also been instructed that one who has been
harmed by or received threats from a group will be justified in acting more quickly and
taking harsher measures for his own protection provided that he reasonably associated the
victim with that group. This is so because under the circumstances here, defendant was
not reasonably justified in shooting Sisoukchaleun in the face and then again in the side
of his torso, even though he had been shot by some unspecified Crip gang when he was a
“youngster.”
D. Ineffective Assistance of Counsel Claim
To the extent counsel’s performance was deficient for failing to request the
instruction, defendant did not suffer any prejudice. For the same reasons we have
concluded any error is harmless, it is not reasonably probable that, had the instruction
now advocated been given, defendant would have obtained a more favorable outcome.
(Strickland, supra, 466 U.S. at pp. 693-694; Ledesma, supra, 43 Cal.3d at pp. 216-217;
see People v. Xiong (2020) 54 Cal.App.5th 1046, 1068, fn. 11 [Watson standard for
harmless error is essentially the same as the prejudice prong of Strickland]; People v.
Ocegueda (2016) 247 Cal.App.4th 1393, 1407, fn. 4 [same].)
V. Instruction on Viewing Testimony about Defendant’s
Non-recorded Statements with Caution
Defendant asserts that the trial court erred in failing to instruct with the bracketed
paragraph in CALCRIM No. 358 (Evidence of Defendant’s Statements). That portion of
the instruction essentially tells jurors to view a defendant’s non-recorded oral statements
with caution. Defendant raises this claim in connection with his statements concerning
the Bloods about which Vue and Thammavongsa testified. Defendant asserts that the
court’s failure to give this portion of the instruction was prejudicial because there was a
reasonable probability that, had the jurors been instructed to view these unrecorded
statements with caution, the jury would have found him not guilty of murder. The People
assert that any error was harmless. We agree with the People.
56
The court instructed the jury with CALCRIM No. 358, as follows: “You have
heard evidence that the defendant made oral statements before the trial. You must decide
whether the defendant made any of these statements in whole or in part. If you decide the
defendant made such statements, consider the statements along with all of the other
evidence in reaching your verdict. It is up to you to decide how much importance to give
to the statement.” (CALCRIM No. 358, as given.) The court did not instruct the jury
with the bracketed paragraph which reads: “Consider with caution any statement made
by (the/a) defendant tending to show (his/her) guilt unless the statement was written or
otherwise recorded.”
“The extrajudicial admission of a party—that is, any statement by a party to an
action that is offered against that party—is admissible in evidence regardless of its
hearsay character. [Citations.] ‘This kind of testimony is considered dangerous, first,
because it may be misapprehended by the person who hears it; secondly, it may not be
well remembered; thirdly, it may not be correctly repeated.’ [Citation.] Even witnesses
with the best intentions often cannot report the ‘ “exact language” ’ used by a defendant,
and therefore may convey, through errors and omissions, an inaccurate impression of a
defendant’s statements. [Citation.] ‘ “No other class of testimony affords such
temptations or opportunities for unscrupulous witnesses to torture the facts or commit
open perjury, as it is often impossible to contradict their testimony at all, or at least by
any other witness than the party himself.” [Citation.]’ [Citation.] Even if the party
testifies, it may be difficult to convincingly dispute evidence of an extrajudicial
admission because the party has an obvious interest in the outcome of a case. ‘It was
undoubtedly such considerations that led the Legislature to make the admitting of
extrajudicial admissions into evidence conditional on the giving of a cautionary
instruction.’ [Citation.] The cautionary instruction ‘is designed to aid the jury in
determining whether an admission or confession was in fact made.’ ” (People v. Diaz
(2015) 60 Cal.4th 1176, 1185 (Diaz).)
57
Prior to Diaz, trial courts had a duty to provide the cautionary instruction, first
under statute, and following the repeal of the statute, based on case law.20 (Diaz, supra,60 Cal.4th at pp. 1188-1190.) However, in Diaz, our high court concluded that, “in light
of a change in the law that requires the general instructions on witness credibility to be
given sua sponte in every case, the cautionary instruction is not one of the general
principles of law upon which a court is required to instruct the jury in the absence of a
request.” (Id. at p. 1189.) The Diaz court expressly declined to determine, however,
whether the elimination of the sua sponte obligation applied retroactively because it
determined that, in the case before it, any error in omitting the cautionary instruction was
harmless. (Id. at p. 1195; see also People v. Brooks (2017) 3 Cal.5th 1, 80 (Brooks).)
We likewise conclude that, whether the elimination of the sua sponte obligation to
provide the cautionary instruction applies retroactively or not, any error in the omission
of that instruction here was harmless as there is no reasonable probability that the jury
would have reached a result more favorable to defendant had the instruction been given.
(Diaz, supra, 60 Cal.4th at p. 1195; Watson, supra, 46 Cal.2d at pp. 835-836.) “[T]he
purpose of the cautionary instruction is to assist the jury in determining whether the
defendant actually made the statement attributed to him.” (Brooks, supra, 3 Cal.5th at
p. 80.) “ ‘Since the cautionary instruction is intended to help the jury to determine
20 In pertinent part, the former statute read: “ ‘the testimony of an accomplice ought to
be viewed with distrust, and the evidence of the oral admissions of a party with
caution.’ ” (Diaz, supra, 60 Cal.4th at p. 1184, citing former Code Civ. Proc., § 2061,
subd. 4.) The portion of the statement related to oral admissions of a party was repealed
with the adoption of the Evidence Code. (Diaz, at p. 1184.) The Law Revision
Commission explained that because “ ‘the section is but a partial codification of the
common law, the repeal should have no effect on the giving of the instructions contained
in the section or on the giving of any other cautionary instructions that are permitted or
required to be given by decisional law,’ ” and the California Supreme Court so held in
subsequent case law (id. at pp. 1184-1185), but later took another look at this issue in
Diaz.
58
whether the statement attributed to the defendant was in fact made, courts examining the
prejudice in failing to give the instruction examine the record to see if there was any
conflict in the evidence about the exact words used, their meaning, or whether the
[statements] were repeated accurately.’ ” (Diaz, at p. 1195, quoting People v. Pensinger
(1991) 52 Cal.3d 1210, 1268 (Pensinger).)
Again, the unrecorded statements at issue here are statements about which Vue
and Thammavongsa testified in which defendant essentially broadcast his status as a
member of the Meadowview Bloods and which could be interpreted as a gang challenge.
According to Vue, an African-American male responded to Thammavongsa’s statement
that he wanted to race and his use of the term “cuz” by saying: “ ‘Yeah, I know what you
mean. [¶] I like that, too, Blood, but you know, this is Blood all the way.’ ” Vue also
testified that the man said, “ ‘I am a Blood.’ ” According to Thammavongsa, after he and
Sisoukchaleun both said the word, “ ‘cuz’ ” in their conversation, defendant said,
“ ‘Blood, Meadowview, Meadowview bloods’ ” or “ ‘Blood, Meadowviews, 69.’ ”
Contrary to defendant’s contentions, there is no conflict of any significance in the
evidence concerning the exact words used, their meaning, or whether they were repeated
accurately. (See generally Diaz, supra, 60 Cal.4th at p. 1195; Pensinger, supra, 52
Cal.3d at p. 1268.) It is true that Vue and Thammavongsa did not testify to hearing
exactly the same words. However, the meaning of the words they each heard, which
were substantially similar, was clear: defendant was identifying himself as a Blood gang
member. And the evidence does not suggest the witnesses made up defendant’s
invocation of the Meadowview Bloods. There was no apparent way these witnesses
would know defendant was associated with the Meadowview Bloods other than by his
own statements. In the video, it is clear defendant is wearing a jacket, so the tattoo on his
arm could not have been visible. Moreover, on this record, it is possible that these two
witnesses in fact heard different statements by defendant; Vue walked away from the
confrontation shortly after it began, while Thammavongsa remained nearby throughout,
59
and, after some time, Sisoukchaleun “got tired of hearing” defendant say “Blood,
Meadowview . . . .”
Defendant does argue on appeal that Vue’s testimony raised a conflict as to
whether it was he who spoke the words at issue. When viewing the video recording
during her direct testimony, Vue initially identified a different African-American
individual as the one who made the statements at issue here and who then became
involved in a confrontation with Sisoukchaleun. Vue’s initial confusion appears to have
resulted from the fact that she had not seen the video recording prior to testifying.
However, her description of the man involved in the altercation with Sisoukchaleun and
the clothes he was wearing matched that of defendant, including the defendant’s pants
which were adorned with a red design. And Vue identified defendant in a photographic
lineup as the person in question. In any event, this issue does not amount to a conflict in
the evidence as to the words used, their meaning, or whether they were reported
accurately. Rather, this is the functional equivalent of a denial by defendant that he was
indeed the one who made the statements now attributed to him. As the People observe,
where there is “simply a denial by the defendant that he made the statements attributed to
him, [the California Supreme Court] ha[s] found failure to give the cautionary instruction
harmless.” (People v. Dickey (2005) 35 Cal.4th 884, 906, citing People v. Bunyard
(1988) 45 Cal.3d 1189, 1225-1226 (Bunyard).)
Defendant asserts on appeal that, to the extent that he made the statements, he was
trying to avert a conflict “by trying to ingratiate himself with the approaching young men,
who he assumed were Blood gang members,” or he made the statements in a last ditch
effort to make the youths “back off,” which could be consistent with a theory of self-
defense.
First, inasmuch as the statements were relevant to defendant’s gang membership,
whether the statements were made in a hostile, aggressive manner or in a defensive
manner is immaterial as to the issue of whether the bracketed portion of CALCRIM
60
No. 358 should have been given. Second, with regard to defendant’s intent and self-
defense claim, we conclude that it is not reasonably probable that the jury would have
reached a result more favorable to him had the court given the cautionary instruction.
(See generally Diaz, supra, 60 Cal.4th at p. 1195; Watson, supra, 46 Cal.2d at pp. 835-
836.)
As the People observe, and as our high court relied upon in finding harmless error
in Diaz, the jury here was charged with CALCRIM No. 226, “which sets out the
numerous factors the jury may consider in deciding whether a witness’s testimony is
credible.” (Diaz, supra, 60 Cal.4th at p. 1196.) Those factors included, among other
things, “how well a witness could ‘see, hear, or otherwise perceive the things about
which the witness testified,’ how well the witness was ‘able to remember and describe
what happened,’ and whether the witness’s testimony was influenced by ‘bias or
prejudice, a personal relationship with someone involved in the case, or a personal
interest in how the case is decided.’ ” (Id. at p. 1191.) “ ‘[W]hen the trial court
otherwise has thoroughly instructed the jury on assessing the credibility of witnesses, [the
California Supreme Court] ha[s] concluded the jury was adequately warned to view their
testimony with caution.’ ” (Ibid., quoting People v. McKinnon (2011) 52 Cal.4th 610,
680.) Additionally, we note that the portion of CALCRIM No. 358 that was given to the
jury specifically instructed: “You must decide whether the defendant made any of these
statements in whole or in part. If you decide the defendant made such statements,
consider the statements along with all of the other evidence in reaching your verdict.”
Thus, the jury was on notice to first determine whether defendant made the statements
and to do so considering the aforementioned credibility factors. Moreover, beyond the
combined impact of the instructions, the jury had the opportunity to assess defendant’s
intent and state of mind in hearing the testimony of the witnesses and observing his
actions on the surveillance video.
61
Defendant relies principally on People v. Ford (1964) 60 Cal.2d 772, 799-800
(Ford), a case in which the California Supreme Court determined that the failure to give
the cautionary instruction was prejudicial error. We note that, in Ford, the trial court had
the obligation under statute (see fn. 20, ante) to give the instruction, a factor that
undoubtedly led to the reversal. (Id. at p. 799.) In Ford, before the shooting the
defendant said that “he ‘needed the drink to get up his courage,’ ” and made pre-offense
threats, including “ ‘they’d better not give me any trouble or they are going to lose’ ” and
“ ‘that son-of-a-bitch had better not give me any trouble.’ ” (Ibid.) After shooting the
victim, the defendant was heard to say, “ ‘that will be the end of you, you mother-
fucker.’ ” (Ibid.) These statements, the Ford court observed, “bore directly on the issue
of [the] defendant’s capacity to deliberate and premeditate sufficiently to commit first
degree murder.” (Id. at pp. 799-800, italics added.) Additionally, the statements were
reported by witnesses undeniably hostile to the defendant’s case, and, perhaps more
significantly, whose testimony was conflicting and inconsistent. (Id. at p. 800.)
Here, similar to Ford, the statements attributed to defendant were important to
prove defendant’s mental state and motive. Additionally, Thammavongsa,
Sisoukchaleun’s cousin and a self-acknowledged affiliate of LGC, could certainly be
deemed hostile to defendant’s cause. However, Vue was not a similarly hostile witness.
She had only met Sisoukchaleun and his group that night. Further, contrary to
defendant’s contention, and unlike in Ford, Vue’s and Thammavongsa’s testimony did
not “show[] a number of obvious conflicts and apparent inconsistencies.” (Ford, supra,
60 Cal.2d at p. 800.) In substance, their testimony was in agreement in that it showed
that defendant invoked the name of the Bloods. Furthermore, defendant’s gang affiliation
was before the jury through other evidence, including defendant’s tattoo and the jail
phone calls interpreted by the prosecution’s gang expert.
We “ ‘focus[] not on what a reasonable jury could do, but what such a jury is likely
to have done in the absence of the error under consideration.’ ” (Beltran, supra, 56
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Cal.4th at p. 956.) Based on all of the foregoing, we conclude that, even if the trial court
erred in failing to give the cautionary instruction, it is not reasonably probable that the
jury would have reached a result more favorable to defendant had it been so instructed.
(See generally Diaz, supra, 60 Cal.4th at p. 1195; Beltran, at p. 956; Watson, supra, 46
Cal.2d at pp. 835-836.)
VI. Prosecutorial Misconduct Claims
Defendant asserts that the prosecutor’s purported misconduct violated his right to
due process. While acknowledging that his trial counsel did not object to any of the
remarks now claimed to constitute misconduct, defendant: (1) asserts that trial counsel’s
conduct was constitutionally ineffective (a contention we address in part VII of the
Discussion, post), and (2) encourages us to exercise our discretion to reach the merits of
his unpreserved claims. Defendant has forfeited his claims. In any event, we conclude
defendant’s claims are either meritless or did not result in prejudice.
A. Standard of Review
“The standards governing review of misconduct claims are settled. ‘A prosecutor
who uses deceptive or reprehensible methods to persuade the jury commits misconduct,
and such actions require reversal under the federal Constitution when they infect the trial
with such “ ‘unfairness as to make the resulting conviction a denial of due process.’ ”
[Citations.] Under state law, a prosecutor who uses such methods commits misconduct
even when those actions do not result in a fundamentally unfair trial. [Citation.] In order
to preserve a claim of misconduct, a defendant must make a timely objection and request
an admonition; only if an admonition would not have cured the harm is the claim of
misconduct preserved for review.’ ” (People v. Parson (2008) 44 Cal.4th 332, 359; see
also People v. Centeno (2014) 60 Cal.4th 659, 674.)
“[T]he prosecutor has a wide-ranging right to discuss the case in closing argument.
He [or she] has the right to fully state his [or her] views as to what the evidence shows
and to urge whatever conclusions he [or she] deems proper.” (People v. Lewis (1990) 50
63
Cal.3d 262, 283.) To prevail on a claim of prosecutorial misconduct in closing argument,
the defendant must show a reasonable likelihood that the jury understood or applied the
prosecutor’s comments in an improper or erroneous manner. (People v. Frye (1998) 18
Cal.4th 894, 970, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th
390, 421, fn. 22 (Doolin).)
B. Forfeiture
“ ‘As a general rule a defendant may not complain on appeal of prosecutorial
misconduct unless in a timely fashion—and on the same ground—the defendant made an
assignment of misconduct and requested that the jury be admonished to disregard the
impropriety.’ ” (People v. Hill (1998) 17 Cal.4th 800, 820 (Hill).) Here, as defendant
acknowledges, his trial counsel did not object or request an admonition at any time
during the prosecutor’s closing argument. Defendant has thus forfeited these claims.
(People v. Dykes (2009) 46 Cal.4th 731, 757, citing People v. Stanley (2006) 39 Cal.4th
913, 952.) In any event, we will address the merits of defendant’s contentions since he
raises them in connection with his claim of ineffective assistance of counsel.
C. Analysis
1. The Prosecutor’s Reference to Information the Trial Court Would Have at
Sentencing
Defendant points out that during his initial closing argument, the prosecutor stated
that, if defendant was convicted, the judge at sentencing would have “a lot more
information than” the jury, and that the court would have “all kinds of information that”
the jury did not have. According to defendant, this constituted an improper reference to
matters outside of the record.
Before addressing this contention, we take a moment to put the prosecutor’s
comments in context. The comments were an apparent effort to remind the jury to make
their decision independent of penalty or punishment. The prosecutor said, “And as I
talked about a little bit in my questioning of you originally, it’s not about penalty and
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punishment. Okay. You have to absolutely just decide what happened in the case, decide
what the act was, what the defendant specifically did, what his mental state was at the
time that he did it. And you have to trust that this Judge can do what he needs do to, [sic]
and do his job in terms of penalty and punishment. [¶] Understanding that in making
those decisions, he will have a lot more information than you do. [¶] Okay. He will
have all kinds of information that you don’t have, so you cannot make that decision from
the jury deliberation room. [¶] Okay. So you have to let him make the decision as to
penalty and punishment. You guys just make the decision as to the law and the facts.”
(Italics added.) In context, it appears that the prosecutor’s comments related to
information the judge would have at sentencing, not information the jury did not have
relative to determining the facts in the case.
As a general matter, “[a] prosecutor commits misconduct by referring in argument
to matters outside the record.” (People v. Cunningham (2001) 25 Cal.4th 926, 1026
(Cunningham).) Where prosecutorial misconduct occurs, reversal is not required unless
there is prejudice. (People v. Arias (1996) 13 Cal.4th 92, 161; People v. Castillo (2008)
168 Cal.App.4th 364, 386-387 (Castillo).) Unless a prosecutor’s misconduct renders the
trial fundamentally unfair, misconduct warrants reversal only if it is reasonably probable
that the defendant would have obtained a more favorable result absent the misconduct.
(Castillo, at pp. 386-387 & fn. 9.)
Here, the trial court instructed the jury at the beginning of the trial and again at the
end, pursuant to CALCRIM No. 222, that the statements of counsel are not evidence.
The jurors were also instructed pursuant to CALCRIM No. 200 that they were to decide
the case based solely on the evidence presented, and pursuant to CALCRIM No. 3550
that they were not consider punishment in arriving at their verdict. We presume the jury
followed these instructions. (Letner and Tobin, supra, 50 Cal.4th at p. 196.) We do not
condone the prosecutor’s remarks. Although the remarks related to information the judge
would have at sentencing, they were unnecessary to describe the jury’s duty to make their
65
decision independent of penalty and punishment and ultimately supplied defendant with
the argument he makes on appeal. Nevertheless, given the strength of the evidence in the
case, the instructions provided to the jury, and the context in which these statements were
made, we conclude it was not reasonably probable that, had the prosecutor not made
these remarks, defendant would have obtained a more favorable result.
2. Discussion about the Driver of the Pickup Who Did Not Testify
Defendant claims the prosecutor committed misconduct in discussing the fact that
the woman who drove him away from the scene in his pickup was not called to testify.21
During his closing argument, the prosecutor stated, “Now, I bet you anything that
you guys are sitting here going, Wait a minute, where is the woman who’s the driver of
the truck, right? I mean, she’s the getaway driver. She was right there driving the truck.
Why didn’t she come in and sit up here and testify in this case, right? Why didn’t the
getaway driver testify in this case? [¶] Okay. The law says, obviously, that you don’t
have to call all witnesses to any particular -- in any particular crime. You have to trust to
some extent that if somebody had something to say that’s going to impact this case, one
way or the other, myself or [defense counsel] would have called them and brought them
in here to testify. [¶] Okay. And if, when this trial is over, you’re released from your
admonition, you want to ask those questions, I would be happy to answer them for you.
If you want to ask me why didn’t Catina Barker testify when this trial is over and done
with, when you’re released from the admonition not to talk about this case, I would be
happy to talk to you about it, but right here, as we sit here today, the only thing that’s
21The trial court did not give CALCRIM No. 373 to the jury. That instruction reads:
“The evidence shows that (another person/other persons) may have been involved in the
commission of the crime[s] charged against the defendant. There may be many reasons
why someone who appears to have been involved might not be a codefendant in this
particular trial. You must not speculate about whether (that other person has/those other
persons have) been or will be prosecuted. Your duty is to decide whether the defendant
on trial here committed the crime[s] charged.”
66
relevant is the witnesses that did testify and what they had to say and what evidence they
produced in this case, okay. [¶] So you can’t speculate about what someone else would
have or might have said had they been here, okay? You just have to trust that the lawyers
in this case, that we have put on the evidence in this case that is relevant to this case, and
that will assist you as the triers of fact in making the decisions that you have to make in
this case.”
Defendant contends this line of discussion improperly implied that the prosecutor
had knowledge of facts not in evidence. In support of this contention, defendant relies on
People v. Hall (2000) 82 Cal.App.4th 813 (Hall). In Hall, the defense counsel, in closing
argument, emphasized the fact that Officer Tinsley, one of two arresting officers, was not
called by the prosecution to testify, although the prosecution did present the testimony of
the other arresting officer, Officer Williams. (Id. at p. 816.) In rebuttal, the prosecutor
observed that the defense could have called Officer Tinsley to testify. (Ibid.) The
prosecutor then stated that, had he called Officer Tinsley, his testimony would have been
repetitive. (Ibid.) On appeal, the Hall court held that the prosecutor’s argument that the
defense could have called Officer Tinsley was proper. (Id. at p. 817.) However, the
court explained: “the prosecutor went too far when he told the jury the absent witness’s
testimony would have been repetitive. The effect of this argument was to tell the jury
that the witness, if called, would have testified exactly as Officer Williams did, in a
manner favorable to the prosecution. This was misconduct.” (Ibid.) The court added,
“[t]he prosecutor, in the guise of closing argument, told the jury what the testimony of an
uncalled witness would have been, thus implying that he decided not to call Officer
Tinsley as a witness after determining that his testimony would have been the same as
and corroborative of Officer Williams’s testimony.” (Ibid.) The Hall court held that this
denied the defendant his Sixth Amendment rights to confront and cross-examine an
uncalled prosecution witness. (Hall, at p. 817.)
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Here, the prosecutor’s remarks did not cross this line. Crucially, the prosecutor
did not make any representations, express or implied, as to how Barker would have
testified. He did not state that her testimony would have been repetitive with that of the
other prosecution witnesses. Rather, he stated that the jurors should “trust to some extent
that if somebody had something to say that’s going to impact this case, one way or the
other, myself or [defense counsel] would have called them and brought them in here to
testify.” This remark was, essentially, content-neutral. In other words, the prosecutor did
not impermissibly tell the jury what Barker’s testimony would have been, “thus implying
that he decided not to call [Barker] as a witness after determining that [her] testimony
would have been the same as and corroborative of” the testimony of other prosecution
witnesses. (Hall, supra, 82 Cal.App.4th at p. 817.)
Accordingly, we reject defendant’s contention that the remarks constituted
prosecutorial misconduct and deprived him of his Sixth Amendment rights to
confrontation and cross-examination.
3. Weena Vue’s Testimony
Defendant correctly observes that while Vue did not testify that she heard him say
“Meadowview,” the prosecutor in closing stated, “Remember, Weena Vue said that the
defendant responded, ‘This is Meadowview,’ and he started to get angry?” Thus, the
prosecutor misstated that Vue testified she heard defendant say something about
Meadowview.
Defendant is correct that “mischaracterizing the evidence is misconduct.” (Hill,
supra, 17 Cal.4th at p. 823.) However, defendant suffered no prejudice from this
mischaracterization.
While Vue did not specifically testify that defendant said anything about
Meadowview, she did testify that the man who was involved in the confrontation with
Sisoukchaleun said, “ ‘I am a Blood.’ ” She also testified to hearing the statement:
“ ‘Yeah, I know what you mean. [¶] I like that, too, Blood, but you know, this is Blood
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all the way.’ ” Sisoukchaleun responded, “ ‘Yeah, this is LAC, Little Asian Crip.’ ”
According to Vue, although the conversation had not been confrontational initially, at
that time, the African-American man “got into Bud’s face,” and the two men started
behaving more aggressively towards each other.
It is not disputed that, as the gang expert testified, Meadowview Bloods are a
subset of the Bloods criminal street gang. While Vue did not testify that defendant
identified himself as a Meadowview Blood, the words she said she heard indicated that
defendant was affiliated with the Bloods, and it is undisputed that defendant shot and
killed Sisoukchaleun. Additionally, as the People observe, there was evidence before the
jury from Thammavongsa that defendant said he was a Meadowview Blood. Thus, the
jury heard testimony from another witness that defendant identified himself more
specifically as a Meadowview Blood. Moreover, as we have noted, there was no
apparent way these witnesses would know defendant was associated with a Blood gang
other than by his own statements. Consequently, even though the prosecutor misstated
Vue’s precise testimony, defendant suffered no prejudice as a result.
To the extent defendant argues that the prosecutor committed misconduct by
misrepresenting Vue’s testimony as indicating that defendant was confrontational and
combative immediately, rather than becoming so only after Sisoukchaleun responded to
his remark, defendant’s contention is without merit. The prosecutor’s remark was not an
outright mischaracterization of Vue’s testimony, and the jury was properly instructed that
it must decide the case solely based on the evidence, and the attorney’s remarks were not
evidence.
4. “Leave it Alone”
In his opening statement at the beginning of the trial, the prosecutor told jurors,
“witnesses also tell you that an individual who appears to know the defendant tries to get
him to calm down and says, ‘Hey, leave it alone, leave it alone.’ ” The prosecutor
reprised this assertion in closing arguments. However, as defendant correctly observes,
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there was no testimony that any individual told defendant to “ ‘leave it alone.’ ” To the
extent that the prosecutor’s remark constituted a mischaracterization of the evidence and
misconduct, defendant suffered no prejudice as a result.
While there was no testimony of this sort, our independent viewing of the
surveillance video demonstrates that, as the confrontation escalated, an unidentified
African-American man walked towards the group with his arm outstretched, placed his
arm over defendant’s chest and appeared to talk with defendant. The man appears to
attempt to restrain defendant or encourage restraint. Moreover, again, the jury was
instructed that it must decide the case solely based on the evidence, and the attorney’s
remarks were not evidence. In light of this evidence and the court’s instructions,
defendant suffered no prejudice from the prosecutor’s comments.
5. Burden of Proof and Griffin22 Error Claim
Defendant contends the prosecutor misstated the law by arguing that reasonable
doubt had to be based on “ ‘some evidence.’ ” According to defendant, the prosecutor
suggested that defendant had a burden to present “ ‘some evidence’ ” of what he actually
believed relative to the need to defend himself to support his claim of imperfect self-
defense.
The prosecutor stated in his closing argument: “The term that we use in the law in
this country is ‘beyond a reasonable doubt.’ And the idea here is that it has a couple of
components to it. First of all, it’s reasonable and doubt. The idea that it could be open to
any doubt is not what the law is. And the jury instruction that the judge read to you, talks
about the fact that it’s not speculation or possible doubt, because everything in life is
open to some possible or imaginary doubt.” The prosecutor continued: “So the idea here
is that any reasonable doubt you have, would have to be based on the evidence in this
22 Griffin v. California (1965) 380 U.S. 609, 615 [14 L.Ed.2d 106, 110] (Griffin).
70
case, have to be based on something you heard in this courtroom, something that came
from a witness in this chair, a piece of evidence that you received in the trial. The idea
would have to be -- that it would have to come from the evidence, not speculation, not a
possible doubt, but something from the evidence in this case.”
In discussing the concept of imperfect self-defense, the prosecutor stated:
“Basically, what it tells us is that a reasonable person would not have believed in the need
for self-defense, but the defendant, he did. Here’s the problem with that. That particular
offense [sic] requires an actual -- an actual belief, proof of an actual belief, that the
defendant believed that. There is no evidence of what the defendant actually believed.
[¶] Okay. We don’t have that. [¶] Remember, when we look at the evidence in this
case, we make decisions. We only look at the evidence in the case. We don’t make -- we
don’t speculate. We don’t have conjecture. We look at the evidence. There’s no
evidence of that.”
Defendant again relies on Hill, supra, 17 Cal.4th 800, in which the prosecutor,
discussing the reasonable doubt standard, stated: “ ‘it must be reasonable. It’s not all
possible doubt. Actually, very simply, it means, you know, you have to have a reason for
this doubt. There has to be some evidence on which to base a doubt.’ ” (Id. at p. 831,
italics omitted.) After the court overruled defense counsel’s objection, the prosecutor in
Hill continued: “ ‘There must be some evidence from which there is a reason for a doubt.
You can’t say, well, one of the attorneys said so.’ ” (Ibid., italics omitted.) The Hill
court stated, “to the extent [the prosecutor] was claiming there must be some affirmative
evidence demonstrating a reasonable doubt, she was mistaken as to the law, for the jury
may simply not be persuaded by the prosecution’s evidence.” (Ibid.) However, the court
also observed that, “On the other hand, [the prosecutor] may simply have been exhorting
the jury to consider the evidence presented, and not attorney argument, before making up
its mind.” (Ibid.) Ultimately, the court concluded that the prosecutor committed
misconduct “insofar as her statements could reasonably be interpreted as suggesting to
71
the jury she did not have the burden of proving every element of the crimes charged
beyond a reasonable doubt.” (Ibid.) While the court characterized the matter as an
arguably close question, the court concluded that it was “reasonably likely [the
prosecutor]’s comments, taken in context, were understood by the jury to mean defendant
had the burden of producing evidence to demonstrate a reasonable doubt of his guilt.”
(Id. at p. 832.)
Here, as the People observe and defendant concedes, the prosecutor did not state
that reasonable doubt must be based on “ ‘some evidence.’ ” We conclude that the
prosecutor here did not commit misconduct by shifting the burden of proof or suggesting
that defendant was required to present some evidence or meet some evidentiary
threshold. The prosecutor simply told the jury there was no proof of defendant’s actual
belief regarding the need to defend himself and that in deciding the case, the jury must
not speculate about that. Thus, the essence of the prosecutor’s remarks was that the jury
must make its determinations based on the evidence presented at trial, a legally correct
observation. Reasonable doubt, stated by the prosecutor, must arise from the evidence—
whether based on what the evidence proved or what it failed to prove—rather than
speculation or conjecture.
This case has even less in common with People v. Woods (2006) 146 Cal.App.4th
106, another case upon which defendant relies. In Woods, the prosecutor, during her
rebuttal addressing the defense’s attack on a police officer’s account of the relevant
events, stated: “ ‘Officer Campbell has a job to do. He has been doing that job for many,
many years. [Defense counsel] didn’t bring one witness into this courtroom to say that he
doesn’t do it properly. That he does it in a poor manner, that he does it wrong. That he
tramples on anybody’s rights. Not one witness came into court to say that but she thinks
it’s okay for her to stand up here in front of you and say that and that you should take it
as gospel. No, she is obligated to put the evidence on from that witness stand.’ ” (Id. at
p. 112.) These remarks, clearly misstating the law in claiming that the defendant “bore
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some burden of proof or persuasion,” were plainly improper and constituted misconduct.
(Id. at p. 113.) There are no remarks of a similar character here.
Defendant asserts that the prosecutor’s comments focused the jury’s attention on
the fact that defendant did not testify and “suggested that his failure to tell the jury what
he actually believed foreclosed his claim of imperfect self-defense.” Defendant contends
that because he was the only one who could provide testimony as to what he actually
believed, the prosecutor comments violated Griffin, supra, 380 U.S. at page 615. On this
point he relies, without analysis, on People v. Murtishaw (1981) 29 Cal.3d 733, 757 and
footnote 19 (Murtishaw), and People v. Bradford (1997) 15 Cal.4th 1229, 1339
(Bradford). Citing its earlier decision in Murtishaw, our high court held in Bradford that
a prosecutor commits Griffin error “if he or she argues to the jury that certain testimony
or evidence is uncontradicted, if such contradiction or denial could be provided only by
the defendant, who therefore would be required to take the witness stand.” (Bradford, at
p. 1339.) However, the Bradford court also noted, that Griffin does not extend to bar
prosecution comments based upon the state of the evidence or upon the failure of the
defense to introduce material evidence. (Bradford, at p. 1339.) “A distinction clearly
exists between the permissible comment that a defendant has not produced any evidence,
and on the other hand an improper statement that a defendant has a duty or burden to
produce evidence, or a duty or burden to prove his or her innocence.” (Id. at p. 1340.)
“Griffin[’s] . . . protection of the right to remain silent is a ‘shield,’ not a ‘sword’ that can
be used to ‘cut off the prosecution’s “fair response” to the evidence or argument of the
defendant.’ ” (People v. Lewis (2004) 117 Cal.App.4th 246, 257.)
In Murtishaw, the prosecutor referred to a witness’s testimony about pre-offense
statements the defendant had made as “uncontradicted.” (Murtishaw, supra, 29 Cal.3d at
p. 757 & fn. 19.) However, on appeal, the court did not address the merits, and simply
held that defendant forfeited the argument by failing to object in the trial court. (Id. at
pp. 757-758.)
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In Bradford, the prosecutor argued the victims had been killed for pleasure and
there was no evidence to contrary. (Bradford, supra, 15 Cal.4th at p. 1338.) The
prosecutor further argued that the defense presented no evidence regarding a blood stain
in defendant’s vehicle or evidence contradicting the time of death established by the
coroner, and presented no alibi witnesses or photographs to prove where he was. (Id. at
p. 1339.) These comments were not improper. (Ibid.)
In the instant case, the prosecutor did not say or even imply defendant was the
only source of evidence as to his actual belief; nor did the prosecutor even comment
about the failure to call witnesses. And as defendant concedes, a defendant’s state of
mind may be inferred from sources other than defendant. (People v. De Leon (1992) 10
Cal.App.4th 815, 824.) Consequently, defendant was not the only source of evidence
establishing his actual belief in the need to defend himself. Here, the prosecutor merely
commented on the state of the evidence in that the evidence before the jury did not
demonstrate that defendant actually believed in the need for self-defense.
These comments did not amount to prosecutorial misconduct.
6. Heat of Passion
Defendant asserts that the prosecutor misstated the law with regard to heat of
passion which may serve to reduce murder to manslaughter. According to defendant, the
prosecutor’s remarks erroneously conveyed to the jury that defendant’s specific conduct
of killing the victim in response to the provocation must be reasonable. On this point, we
agree with defendant.
In Beltran, supra, 56 Cal.4th 935, the California Supreme Court discussed the
history of heat of passion and rejected the People’s assertion that the heat of passion
standard should require a showing that the provocation must be of a kind that would
cause an ordinary person of average disposition to kill. Our high court reaffirmed the
proper standard to be applied: “when examining heat of passion in the context of
manslaughter, the fundamental ‘inquiry is whether or not the defendant’s reason was, at
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the time of his act, so disturbed or obscured by some passion . . . to such an extent as
would render ordinary men of average disposition liable to act rashly or without due
deliberation and reflection, and from this passion rather than from judgment.’ ” (Id. at
pp. 938-939, quoting People v. Logan (1917) 175 Cal. 45, 49.) The Beltran court further
clarified that “[a]dopting a standard requiring such provocation that the ordinary person
of average disposition would be moved to kill focuses on the wrong thing.” (Beltran, at
p. 949.) The court continued: “The proper focus is placed on the defendant’s state of
mind, not on his particular act. To be adequate, the provocation must be one that would
cause an emotion so intense that an ordinary person would simply react, without
reflection. . . . [T]he anger or other passion must be so strong that the defendant’s
reaction bypassed his thought process to such an extent that judgment could not and did
not intervene. Framed another way, provocation is not evaluated by whether the average
person would act in a certain way: to kill. Instead, the question is whether the average
person would react in a certain way: with his reason and judgment obscured.” (Ibid.)
Here, the prosecutor stated in closing arguments: “Sudden quarrel and heat of
passion. . . . The definition is that the defendant was provoked. He acted rashly with
intense emotion that obscured reasoning and judgment. [¶] Here’s the kicker. A
reasonable person would have acted the same way. [¶] Okay. There is no such thing as
a reasonable gangster standard. You heard that the defendant cannot set up his own
standard of reasonableness. This is a reasonable person standard. It is a community
standard.” (Italics added.) After furnishing an example of provocation, the prosecutor
continued, “Okay. So on that concept of reasonableness -- we know, from listening to
this case, that there is no way that we can place the defendant in that scenario. There is
no conceivable way that the defendant’s actions mirror what we understand as sudden
quarrel, heat of passion. There is no reasonableness standard for what he did. As a
community, we do not look at his conduct and say, That’s reasonable, Mr. Blessett.
That’s not murder. That’s just manslaughter . . . .” (Italics added.) Later, the prosecutor
75
stated: “The victim takes one .28 blood alcohol swing at the defendant. The evidence in
this case, uncontroverted evidence, is that he stops right then, takes one swing. Stops.
Never connects with anything. Defendant pulls a gun. Puts it point blank to the victim’s
head and pulls the trigger. Right between the eyes. [¶] But that’s not enough, right?
Because as he turns around, the defendant turns the gun again and fires a second shot into
his side, tearing through his aorta. [¶] And with all of that, a 20-year-old dies in the
gutter. Reasonableness? Is that reasonable? [¶] Remember, this is our community
standard, right? Is he acting like a reasonable person would act? No.” (Italics added.)
“When a claim of misconduct is based on the prosecutor’s comments 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.” ’ ” (People v.
Williams (2013) 56 Cal.4th 630, 671 (Williams).) Here, we conclude that the prosecutor
misstated the law by focusing not on whether it was reasonable for defendant to react
rashly, from passion and not from judgment, but instead on whether defendant acted
reasonably by killing. By misstating the law, the prosecutor committed misconduct.
(People v. Boyette (2002) 29 Cal.4th 381, 435.)
The jury was, however, properly instructed with CALCRIM No. 570 (Voluntary
Manslaughter: Heat of Passion—Lesser Included Offense).23 Thus, the jury was
23 The court instructed the jury: “A killing that would otherwise be murder is reduced to
voluntary manslaughter if the defendant killed someone because of a sudden quarrel or in
the heat of passion. [¶] The defendant killed someone because of a sudden quarrel or in
the heat of passion if, Number One, the defendant was provoked. [¶] Two, as a result of
the provocation, the defendant acted rashly and under the influence of intense emotion
that obscured his reasoning or judgment. [¶] And Number Three, the provocation would
have caused a person of average disposition to act rashly and without due deliberation,
that is from passion, rather than from judgment. [¶] Heat of passion does not require
anger, rage, or any specific emotion. It can be any violent or intense emotion that causes
a person to act without due deliberation and reflection. [¶] In order for heat of passion to
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properly instructed on the reasonableness requirement of heat of passion provocation
consistent with Beltran. Additionally, the court instructed the jury pursuant to
CALCRIM No. 200 that if the jurors believed “that the attorneys’ comments on the law
conflict with [the court’s] instructions, [the jury] must follow [the court’s] instructions.”
“The jury is presumed to have followed the trial court’s instructions in the absence of any
indication it was unwilling or unable to do so.” (Letner and Tobin, supra, 50 Cal.4th at
p. 196.)
As we have noted, the Beltran court explained that the Watson standard for
harmless error (see Watson, supra, 46 Cal.2d at pp. 835-836) focuses on what a
reasonable jury is likely to have done, not on what a reasonable jury could do in the
absence of the error, and appellate courts may consider, among other things, “whether the
evidence supporting the existing judgment is so relatively strong, and the evidence
supporting a different outcome is so comparatively weak, that there is no reasonable
probability the error of which the defendant complains affected the result.’ ” (Beltran,
supra, 56 Cal.4th at p. 956.) Given the evidence before the jury, which we have
previously outlined, and the instructions provided by the court, we see no reasonable
reduce a murder to voluntary manslaughter, the defendant must have acted under the
direct and immediate influence of provocation, as I have defined it. While no specific
type of provocation is required, slight or remote provocation is not sufficient. [¶]
Sufficient provocation may occur over a short or long period of time. [¶] It is not
enough that the defendant simply was provoked. The defendant is not allowed to set up
his own standard of conduct. You must decide whether the defendant was provoked and
whether the provocation was sufficient. [¶] In deciding whether the provocation was
sufficient, consider whether a person of average disposition in the same situation and
knowing the same facts would have reacted from passion rather than from judgment. [¶]
If enough time passed between the provocation and the killing for a person of average
disposition to cool off and regain his clear reasoning and judgment, then the killing is not
reduced to voluntary manslaughter on that basis. [¶] The People have the burden of
proving beyond a reasonable doubt that the defendant did not kill as a result of a sudden
quarrel or in the heat of passion. [¶] If the People have not met this burden, you must
find the defendant not guilty of murder.” (Italics added.)
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likelihood that the jury construed or applied the complained-of remarks in an
objectionable fashion (Williams, supra, 56 Cal.4th at p. 671); nor is there a reasonable
likelihood the result would have been different in the absence of those remarks. (Beltran,
at p. 956.)
7. Initial Aggressor, Mutual Combat and Self-Defense
Defendant claims that the prosecutor improperly implied in closing argument that
the terms “ ‘quarrel’ ” and “ ‘fight’ ” were synonymous and that therefore a defendant
loses the right to act in self-defense if that defendant starts either a fight or a verbal
quarrel. Defendant asserts that, because there was purportedly no evidence that he
initiated the physical confrontation, the import of the prosecutor’s argument was that he
lost his right to self-defense even if he merely initiated a verbal quarrel or confrontation.
As we have noted in our discussion of CALCRIM No. 3471, the prosecutor told
the jury: “Not available if you seek a quarrel with the intent to create the necessity for
self-defense. And not available to mutual combatants, unless you withdraw. [¶] If you
start the fight, if this is mutual combat, you don’t get self-defense unless you’ve satisfied
those conditions, which we know didn’t happen in this case. [¶] What that leaves us
with when we look at the outline of self-defense and how the law works, we’re left with
the concept that self-defense is 100 percent reactionary, right? You can’t contrive it.
You can’t set up the circumstances that then requires [sic] you to use self-defense, you
can’t start the quarrel. It has to be reactionary. And that was not the case here.”
The jury was properly instructed on self-defense, including the initial
aggressor/mutual combat instruction that says a “person who engages in mutual combat
or who starts a fight, has a right to self-defense” only if that person tries to stop fighting,
communicates the desire to stop fighting, and affords the other party the opportunity to
stop fighting. (CALCRIM No. 3471.) The court further instructed the jury that “[a]
person does not have the right to self-defense if he provokes a fight or a quarrel with the
intent to create an excuse to use force.” (CALCRIM No. 3472, italics added.)
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Defendant claims that the prosecutor committed misconduct by suggesting the
terms “ ‘fight’ ” and “ ‘quarrel’ ” are synonymous. However, we do not read the
prosecutor’s argument that way. To the contrary, the prosecutor merely paraphrased
CALCRIM Nos. 3471 and 3472 and in doing so did not suggest that fight and quarrel
were the same. The prosecutor said that self-defense is not available if a person seeks a
quarrel with the intent to create the necessity for self-defense. And then he explained that
if a person starts a fight that person is not entitled to self-defense unless he attempts to
withdraw by satisfying the conditions set forth in CALCRIM No. 3471.
As we have demonstrated, provoking a quarrel or fight are two different acts of
conduct. The prosecutor’s argument did not confuse the two terms. The prosecutor’s
comment that self-defense is not available if one “seeks a quarrel with the intent to create
the necessity for self-defense” simply focused on one of the two types of conduct that
would preclude self-defense when the use of force is contrived by the defendant, quarrel
instead of fight. Then the prosecutor discussed the principle that when a person starts a
fight or engages in mutual combat, a claim of self-defense is precluded unless the person
withdrew from the conflict. Nothing the prosecutor said in this line of argument
amounted to misconduct.
8. “Yellow Light” Analogy
Defendant claims that the prosecutor committed misconduct in attempting to
explain the concepts of deliberation and premeditation by analogizing them to deciding to
drive one’s car through a yellow traffic light.
The prosecutor stated in his closing argument: “We’ve all had yellow lights,
where you make some decisions, right? You weigh -- you weigh the for and against.
You think about things like, how long has this light been yellow? Okay. How much
traffic is in the intersection? How much is the traffic in front of me stopped. How much
traffic is there on the sides? Is the -- is there a police officer anywhere around? We go
through all of those things in our head[s]. We weigh all of those considerations. We
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look at the for and against and sometimes, it’s easy. If the light just turned yellow, we
go. Sometimes it’s been yellow too long, we stop, but we have all been in those
situations where it’s right on the edge, right? That yellow light has been yellow just long
enough. And we make three or four significant decisions, significant to our own safety,
significant to the safety of those people around us, and we make those decisions in a split
second. [¶] And a lot of us press the accelerator and go, but we’ve made those decisions.
And the reality is, that you have premeditated and deliberated. And like the law tells us,
you make that decision quickly. So we do make those decisions in our everyday lives.
We make decisions where we impact other people that have large consequences to them.
We make them fast and we premeditate and deliberate. [¶] So the idea here, and the law
tells us that it’s not about the amount of time. One of the things -- some of the things that
we’re gonna look at, and remember the law tells us we consider all of the circumstances
in the weighing of evidence, right?”
There are an increasing number of cases, published and unpublished, discussing
whether this particular analogy appropriately illustrates deliberation and premeditation.
(E.g., People v. Avila (2009) 46 Cal.4th 680, 715; Drain v. Woods (E.D. Mich. 2012) 902
F.Supp.2d 1006, 1036; People v. McBride (Colo.Ct.App. 2009) 228 P.3d 216, 224-225.)
Our state’s high court, however, has essentially approved this argument. (Avila, at p.
715.) Like our high court, we conclude that the prosecutor used this example, and the
number of observations and determinations that must be made in a brief period of time,
“as an example of a ‘quick judgment’ that is nonetheless ‘cold’ and ‘calculated.’ ” (Ibid.)
“Premeditation and deliberation do not require an extended period of time, merely an
opportunity for reflection.” (People v. Cook (2006) 39 Cal.4th 566, 603.)
The prosecutor’s remarks were not inconsistent with the trial court’s instructions.
The court instructed the jury with CALCRIM No. 521 (First Degree Murder), which
instructed in pertinent part: “The length of time the person spends considering whether to
kill does not alone determine whether the killing is deliberate and premeditated. The
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amount of time required for deliberation and premeditation may vary from person to
person and according to the circumstances. A decision to kill made rashly, impulsively,
or without careful consideration is not deliberate and premeditated. On the other hand, a
cold, calculated decision to kill can be reached quickly. The test is the extent of the
reflection, not the length of time.” (CALCRIM No. 521.) The prosecutor’s use of the
yellow light analogy did not constitute misconduct.
9. Lesser Included Offenses
Defendant asserts that the prosecutor committed misconduct by stating that the
reason the trial court instructed on lesser included offenses was because the court was
required to do so. Defendant emphasizes that the prosecutor did not specify that the court
was only required to instruct on lesser included offenses if there was substantial evidence
supporting the instructions. According to defendant, the prosecutor misstated the law by
implying that the court was only instructing on lesser included offenses because it was
obligated to do so based on “some legal technicality.”
In closing argument, after discussing the elements of first and second degree
murder, the prosecutor stated: “Now, the Judge also instructed you on what’s called a
lesser-included offense. The crime of murder has contained within it another crime.
. . . [¶] . . . [¶] . . . The idea of the lesser-included offense is that, if that can occur, if
you can take away one element and be left with another separate crime, then the Court
has to instruct you on that crime. [¶] Okay. It doesn’t mean that the elements of that
crime are there. It doesn’t mean there’s not a murder that was committed. It simply
means that it fits that definition. We can take away one element and we’re left with
another completely contained crime within it. [¶] Okay. So that’s what we mean by a
lesser-included offense. Okay. You have to be instructed on it.” (Italics added.) The
prosecutor then went on to discuss voluntary manslaughter.
As defendant observes, the court is required to instruct on a lesser included offense
“ ‘whenever evidence that the defendant is guilty only of the lesser offense is “substantial
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enough to merit consideration” by the jury. [Citations.] “Substantial evidence” in this
context is “ ‘evidence from which a jury composed of reasonable [persons] could . . .
conclude[]’ ” that the lesser offense, but not the greater, was committed.’ ” (People v.
Romero (2008) 44 Cal.4th 386, 403, quoting People v. Breverman (1998) 19 Cal.4th 142,
162.)
In essence, the prosecutor here described the definition of lesser included offenses.
While he did not completely explain the circumstances under which instructions on lesser
included offenses are to be given to the jury for consideration, he was not required to do
so. Contrary to defendant’s characterization, the prosecutor’s remarks were rather
neutral; he essentially explained that the fact that the court was instructing on a lesser
included offense did not mean that the elements of the greater offense were not present.
We do not agree that the prosecutor’s remarks conveyed the message that the court
was only instructing on lesser included offenses because it was required to do so based on
some legal technicality. His remarks did not constitute misconduct.
VII. Ineffective Assistance of Counsel
We have already addressed several of defendant’s ineffective assistance of counsel
claims. Defendant advances additional claims which, he contends, demonstrate that he
was denied the effective assistance of counsel at trial. We conclude that defendant has
failed to show he received constitutionally ineffective assistance of counsel.
A. Failure to Object to Evidence of Ammunition/Magazines
The People presented evidence concerning ammunition and magazines recovered
pursuant to a search warrant which were of different calibers than the weapon used to
murder Sisoukchaleun. Defendant contends that trial counsel should have objected to
evidence pertaining to all of the ammunition and magazines, even of the same caliber as
the weapon used in the shooting. He asserts the evidence “was cumulative, as the
evidence that [defendant] in fact shot Sisoukchaleun was both overwhelming and
undisputed.”
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“When the prosecution relies . . . on a specific type of weapon, it is error to admit
evidence that other weapons were found in his possession, for such evidence tends to
show, not that he committed the crime, but only that he is the sort of person who carries
deadly weapons.” (People v. Riser (1956) 47 Cal.2d 566, 577 (Riser).) However,
evidence of ammunition and weapons other than the weapon used in the specific crime is
admissible when relevant for other purposes. (People v. Smith (2003) 30 Cal.4th 581,
613-614 [relevant to the defendant’s state of mind]; People v. Cox (2003) 30 Cal.4th 916,
956-957 [guns relevant either as possible murder weapons or as weapons that could have
been used to coerce victims into defendant’s car or otherwise subdue them in furtherance
of the criminal plan to kill them], disapproved on other grounds in Doolin, supra, 45
Cal.4th at p. 421, fn. 22.)
While it is clear that some of the ammunition of varying calibers and associated
magazines were not related to the handgun with which defendant shot Sisoukchaleun, we
conclude that it was not error to admit this evidence on this basis. According to the gang
expert, the primary activities of the Meadowview Bloods are robbery, burglary, narcotic
sales, weapons possession, and assaults with deadly weapons, which have led to murders.
Defendant’s possession of the ammunition and magazines unrelated to the shooting was
relevant to his status as a gang member and to the charged gang enhancement. The
possession is conduct consistent with a primary activity of the gang and is evidence from
which defendant’s “intent to promote, further, or assist in any criminal conduct by gang
members” could be inferred. (§ 186.22, subd. (b)(1).) Because this evidence was
relevant for other purposes, it was not precluded by the rule in Riser. Therefore, trial
counsel’s performance was not deficient because the objection defendant contends
counsel failed to make would have been meritless. (People v. Ochoa (1998) 19 Cal.4th
353, 463.) This claim of ineffective assistance of counsel fails for that reason.
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B. The Gang Expert’s Opinion of Defendant’s Gang Membership
as Based “On the Facts of This Case”
Defendant asserts that the gang expert, expressing his opinion that defendant was a
Meadowview Blood based on, among other things, the facts of this case, invaded the
province of the jury. Therefore, according to defendant, defense counsel was ineffective
for failing to object to this testimony.
An expert witness may express an opinion that embraces an ultimate issue to be
determined by the trier of fact, provided the expert’s opinion is otherwise admissible.
(Evid. Code, § 805.) Conversely, an expert may not offer an opinion as to how the case
should be decided (People v. Killebrew (2002) 103 Cal.App.4th 644, 651 (Killebrew),
disapproved on other grounds in People v. Vang (2011) 52 Cal.4th 1038, 1047, fn. 3
(Vang)), that a defendant had specific knowledge or intent (Killebrew, at pp. 657-658), or
as to the defendant’s guilt (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 77).
Contrary to defendant’s contention, the expert’s testimony concerning defendant’s
status as a member of the Meadowview Bloods, based on “the facts of this particular
case,” did not invade the province of the fact finder. “The requirements for expert
testimony are that it relate to a subject sufficiently beyond common experience as to
assist the trier of fact and be based on matter that is reasonably relied upon by an expert
in forming an opinion on the subject to which his or her testimony relates. [Citations.]
Such evidence is admissible even though it encompasses the ultimate issue in the case.”
(People v. Olguin (1994) 31 Cal.App.4th 1355, 1371.) “[A]n individual’s membership in
a criminal street gang is a proper subject for expert testimony.” (People v. Duran (2002)
97 Cal.App.4th 1448, 1464.) Additionally, evidence of the charged offenses may be
considered by an expert in forming an opinion as to whether a gang is a criminal street
gang with a pattern of criminal gang activity consisting of two or more statutorily
enumerated offenses. (Gardeley, supra, 14 Cal.4th at p. 625.) While it would have been
more accurate for the prosecutor to focus the question on the evidence in the case, instead
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of the facts in the case (see Vang, supra, 52 Cal.4th at p. 1043, fn. 1), defendant’s trial
counsel was not ineffective for failing to object. Had the prosecutor been required to
rephrase the question, asking for the expert’s opinion based on the evidence in the case
instead of the facts in the case, the expert’s answer undoubtedly would have been the
same. In addition, the expert would have been allowed to specifically reference the
evidence to which the question referred. Where the record sheds no light on why counsel
did not object, we reject the claim of ineffective assistance of counsel unless trial counsel
failed to provide an explanation at the trial court’s request, or unless there could be no
satisfactory explanation. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267
(Mendoza Tello).) “ ‘[D]eciding whether to object is inherently tactical, and the failure to
object will rarely establish ineffective assistance.’ ” (Carrasco, supra, 59 Cal.4th at p.
985, quoting People v. Hillhouse (2002) 27 Cal.4th 469, 502.) Here, counsel may very
well have made a strategic decision to avoid emphasizing the evidence by having the
expert itemize it in explaining what evidence supported his opinion or forcing the
prosecutor to state another hypothetical question summarizing the facts of this case.
Moreover, even if counsel was constitutionally deficient for failing to object,
defendant has not established Strickland prejudice. The evidence of defendant’s gang
membership was overwhelming.
C. Failure to Object to the Gang Expert’s Testimony about the
Perpetuation of Gang Membership
The gang expert testified that gang members do not leave the gang unless they are
labeled snitches and the gang stops associating with them. Otherwise, there is no
mechanism for gang members to leave the gang. Gang activity may drop off, but
association with the gang does not end, and there is “not a true stop in them being who
they are. It is who they are. That’s what they’re about.”
According to defendant, his trial attorney was ineffective for failing to object to
this testimony. Specifically, defendant claims that this testimony lacked any adequate
85
foundation, and invited the jury to conclude, based on factors other than the criminal
history evidence, that defendant acted for gang purposes. Defendant maintains that this
was improper propensity evidence which violated his right to due process. Defendant
also now claims this testimony was speculative and conjectural.
Defendant misreads the record. It was defense counsel that first inquired on this
subject. On cross-examination, she asked, “How do you find -- people leave gangs. That
does happen. They’re drop outs. People walk away from the gang memberships. How
do you find that that happens generally or why it would happen?” The testimony about
which defendant complains was in response to that question.
We have already noted that where there may be a satisfactory explanation for not
objecting, we reject claims of ineffective assistance of counsel. (Mendoza Tello, supra,
15 Cal.4th at pp. 266-267.) As the United States Supreme Court has observed, “There
are . . . ‘countless ways to provide effective assistance in any given case. Even the best
criminal defense attorneys would not defend a particular client in the same way.’
[Citation.] Rare are the situations in which the ‘wide latitude counsel must have in
making tactical decisions’ will be limited to any one technique or approach.” (Richter,
supra, 562 U.S. at p. 106.)
Here, there are potentially satisfactory explanations for defense counsel not
objecting. Defense counsel could have elected not to object to the testimony about which
he now complains because it seemed inherently incredible, which could, in turn, cause
the jury to consider the gang expert’s testimony overall with greater skepticism. Indeed,
defense counsel made this argument to the jury. Ridiculing the gang expert, defense
counsel said, “And the last contact he could say that [defendant] had with any gang
member was ten years ago. Most of the things he said was just ridiculous. [¶] No drop
outs unless snitches.” Further, counsel could have reasonably concluded that had she
objected, the prosecution would ask additional questions to further explain the expert’s
opinion on this matter, which he ultimately did on redirect anyway. On redirect, the gang
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expert testified that some people do drop out of gangs after being exposed to positive
programs, for example church or project Cease Fire, a program that encouraged youth to
stop gang banging by giving them resources.
We conclude that defense counsel’s performance was not deficient for the mere
failure to object to this line of testimony. And as before, defendant has failed to establish
Strickland prejudice.
D. Failure to Object to Prosecutorial Misconduct
Defendant asserts that counsel’s failure to object to the alleged instances of
prosecutorial misconduct we discussed, ante, rose to the level of constitutional
ineffectiveness. Because we have concluded that there was either no misconduct or that
no prejudicial prosecutorial misconduct occurred related to the cited comments, we
conclude that defendant has failed to establish ineffective assistance for failing to object
to these comments.
VIII. Cumulative Error
Defendant contends that the cumulative effect of the alleged errors warrants
reversal. We reject this contention. The premise behind the cumulative error doctrine is
that, while a number of errors may be harmless taken individually, their cumulative effect
requires reversal. (Bunyard, supra, 45 Cal.3d at pp. 1236-1237.) While certain errors in
the admission of case-specific hearsay warrant reversal of the gang enhancement
allegation true finding, we have further reviewed all of defendant’s claims and find no
cumulative prejudicial error warranting reversal of his substantive convictions or the
firearm enhancements. Defendant was not deprived of a fair trial.
IX. Ten-Year Gang Enhancement Sentence
Defendant contends, and the People agree, that the 10-year sentence imposed
pursuant to section 186.22 must be struck pursuant to subdivision (b)(5) of that section.
In light of our determination that the gang enhancement allegation true finding must be
reversed, this contention has been rendered moot. (See fn. 2, ante.)
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X. Section 12022.53, Subdivision (f)
Our review of the record reveals a sentencing error related to two of the firearm
enhancements. The trial court simply stayed imposition of the sentence on the section
12022.5 and 12022.53, subdivision (b), enhancements. This was error. The trial court
should have imposed a specific sentence on each enhancement and then stayed execution
of those sentences pursuant to section 12022.53, subdivision (f).
Section 12022.53, subdivision (f), provides in pertinent part: “Only one additional
term of imprisonment under this section shall be imposed per person for each crime. If
more than one enhancement per person is found true under this section, the court shall
impose upon that person the enhancement that provides the longest term of
imprisonment. An enhancement involving a firearm specified in Section 12021.5, 12022,
12022.3, 12022.4, 12022.5, or 12022.55 shall not be imposed on a person in addition to
an enhancement imposed pursuant to this section.” Our high court has interpreted section
12022.53, subdivision (f), to require trial courts to impose a specific sentence on any
lesser firearm enhancement and then stay execution of that sentence, in the same way a
trial court would impose and stay execution of sentence on counts subject to section 654.
(People v. Gonzalez (2008) 43 Cal.4th 1118, 1122-1123, 1128-1130.) This practice
preserves the possibility of executing the stayed sentence of a lesser firearm enhancement
should a later reversal by an appellate court eliminate the unstayed sentence on the
greater enhancement. (Id. at p. 1128.)
At sentencing, the trial court stated, “just for record keeping purposes, I suppose,
the 12022.5[, subdivision] (a)[] . . . and 12022.53[, subdivision] (b), the sentence is
stayed on that, because it was imposed for the [section 12022.53, subdivision] (d).” The
trial court did not impose sentences and then stay execution thereof. Although this issue
is not raised by the parties, the trial court’s failure to impose sentences on these
enhancements was unauthorized. Because this constituted an unauthorized sentence, it
may be corrected at any time. (See People v. Sanders (2012) 55 Cal.4th 731, 743, fn. 13
88
[it is well established that the appellate court can correct a legal error resulting in an
unauthorized sentence, including a misapplication of section 654, at any time].)
In People v. Alford (2010) 180 Cal.App.4th 1463 (Alford), a case involving a
similarly unauthorized sentence under section 654, this court concluded that the “futility
and expense” of remand militated against sending the case back to the trial court for
resentencing where this court could determine the sentence that the trial court, in the
exercise of its discretion, “undoubtedly” would have imposed. (Alford, at p. 1473.)
However, our statutory authority to modify an unauthorized sentence (§ 1260) does not
authorize us to substitute our judgment for that of the trial court with respect to
discretionary sentencing decisions. (People v. Lawley (2002) 27 Cal.4th 102, 172;
People v. Hines (1997) 15 Cal.4th 997, 1080.) The section 12022.53, subdivision (b),
enhancement poses no issue in this regard because the prescribed sentence to be imposed
upon such an enhancement is 10 years. However, the section 12022.5, subdivision (a),
enhancement provides for imposition of a sentence of three, four, or ten years. On this
record, we cannot say what sentence the trial court “undoubtedly” would have imposed
on this enhancement before staying execution of that sentence pursuant to section
12022.53, subdivision (f). (See Alford, at p. 1473.) Accordingly, we shall remand the
matter to the trial court for resentencing so that the court may select a triad option on the
section 12022.5, subdivision (a) enhancement and impose sentence on that enhancement
as well as the 10-year sentence on the 12022.53, subdivision (b) enhancement, and then
stay execution of those sentences pursuant to section 12022.53, subdivision (f) unless the
court exercises its discretion to strike the firearm enhancements altogether (see part XI. of
the Discussion, post).
XI. Senate Bill 620
After defendant was convicted but before his case became final, the Governor
signed Senate Bill No. 620 (2017-2018 Reg. Sess.) (Senate Bill 620), effective January 1,
2018. Following the enactment of Senate Bill 620, sections 12022.5 and 12022.53 have
89
been amended to include language stating: “The court may, in the interest of justice
pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement
otherwise required to be imposed by this section. The authority provided by this
subdivision applies to any resentencing that may occur pursuant to any other law.”
(§§ 12022.5, subd. (c), 12022.53, subd. (h).) Prior to the enactment of Senate Bill 620,
and when defendant was sentenced, courts did not have discretion to strike or dismiss
these enhancements. The former language of these sections explicitly provided that the
courts “shall not strike” enhancement allegations under those sections. (§§ 12022.5,
former subd. (c), 12022.53, former subd. (h).)
We granted defendant’s request for supplemental briefing on the impact of Senate
Bill 620. In his supplemental opening brief, defendant asserts that his case must be
remanded to the trial court to permit the court to exercise its newly authorized discretion
to strike the firearm enhancements imposed in this case. Defendant asserts that the
amendments to sections 12022.5 and 12022.53 which now grant sentencing courts the
discretion to strike or dismiss those firearm enhancements apply retroactively to his case
based on legislative intent and under the rule in In re Estrada (1965) 63 Cal.2d 740.
The People concede that the amendments to sections 12022.5 and 12022.53 should
be afforded retroactive application to nonfinal judgments and that they should apply to
this case. However, the People further assert that, because it is clear that the trial court
would not have exercised its discretion to strike the firearm enhancements, no purpose
would be served by remand, and, accordingly, remand is not appropriate. In making this
argument, the People rely on the fact that the trial court denied defendant’s motion
pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero), to
dismiss a prior strike allegation, as well as the sentencing court’s remarks when it denied
the motion.
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We accept the People’s concession and apply Senate Bill 620 retroactively. (See
People v. Woods (2018) 19 Cal.App.5th 1080, 1091.) Accordingly, we proceed to
consider the People’s argument that remand would serve no purpose.
In asserting that remand would be futile, the People rely on People v. Gutierrez
(1996) 48 Cal.App.4th 1894, 1896 (Gutierrez). In Gutierrez, the court considered
whether it should remand to allow the trial court to decide whether it would dismiss a
strike conviction under section 1385 following our high court’s decision in Romero,
supra, 13 Cal.4th 497. The Gutierrez court concluded that “no purpose would be served
in remanding for reconsideration.” (Gutierrez, at pp. 1895-1896.) In reaching this
conclusion, the Gutierrez court noted that the trial court had done the following at
sentencing: “indicated that it would not, in any event, have exercised its discretion to
lessen the sentence”; stated that imposing the maximum sentence was appropriate; and
imposed an upper term sentence on the base term and two discretionary one-year
enhancements, which was not required under the three strikes law. (Gutierrez, at
p. 1896.) We also note that the trial court expressly stated that in declining to strike the
discretionary sentences for the one-year enhancements, that “ ‘there really isn’t any good
cause’ ” to do so. Also, the court further stated that the defendant was “ ‘the kind of
individual the law was intended to keep off the street as long as possible.’ ” (Ibid.)
In discussing its reasons for denying the defendant’s Romero motion, the trial
court here said: “[Defendant] has a lengthy criminal history. It stems from . . . when he
was not quite 16 years of age as a juvenile. He was sent to the Boy’s Ranch
approximately at 15 and a half years old for an assault where he struck an adult in the
head with a pistol, causing major injuries that required surgery for a fractured eye socket.
So a pretty serious offense for a nearly 16-year-old. [¶] Further, he was adjudicated for a
second felony of burglary. He’s had a number, at least the report of probation details
three such probation violations as a juvenile. One including a sustained felony
adjudication for purchasing cocaine for sale. [¶] Also, as an adult, when he was
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approximately 18 years of age, he was convicted whereby he was on a bike, turned,
stopped, pointed a sawed-off rifle at a police officer, which necessitated the officer firing
a shot at the defendant, which actually struck [defendant] on the right forearm, but
[defendant] was convicted of a 12020 for that offense, as well as a 148. [¶] When he
was approximately 20 years old is when he was convicted of the attempted robbery, that
is now being asked to be stricken for three strikes purposes. [¶] He was committed to
state prison for that offense. He was not successful on parole without violations. He was
-- one of the violations was a corporal injury to a spouse which was a misdemeanor
conviction for 273.5, at least according to the probation report, he threatened his spouse.
He said, Why don’t you get out of the car? Let me remind you of what I used to do to
you, referring to his prior beatings. [¶] When he was nearly 27 years of age, he was
convicted of a pandering charge, whereby he used two young girls, 14 and 16-years-old --
[¶] . . . [¶] and coerced them into performing various sex acts with individuals. He was
convicted of that offense in 2002, and committed to state prison for that offense for six
years. [¶] So his criminal history is significant. It’s extensive. And the nature of these
convictions involve not only violence, but the pandering is particularly reprehensible,
considering it involved young, minor girls.” The court also noted that it had received
letters “represent[ing] a different side of” defendant which “speak well to the kind of
person that he is.” Also, in remarking on the letter defendant had written, the court found
that defendant acknowledged responsibility and was regretful and that defendant said he
was “trying to turn [him]self around.”
In Gutierrez, there were no other reasons to remand the matter to the trial court
other than to consider dismissing the strike allegation. Here, were it not for the fact we
must remand this matter with directions to the trial court to select a triad sentence on the
section 12022.5 enhancement and then stay execution thereof pursuant to section
12022.53, subdivision (f), we would consider whether the statements the trial court made
here at sentencing are comparable to those made by the trial court in Gutierrez and make
92
a determination whether no purpose would be served by remanding this matter.
However, in light of the fact that remand is required under the circumstances of this case
(see part X. of the Discussion, ante), and the interests of judicial economy therefore
cannot be served by a determination under Gutierrez, we need not decide here whether
the sentencing court’s remarks indicate that remand would serve no purpose.
DISPOSITION
The judgment of conviction is affirmed. The jury’s true finding on the gang
enhancement allegation is reversed and the sentence imposed thereon vacated. On
remand, the People may elect to retry the gang enhancement allegation. The trial court
will resentence defendant, where it is further directed to (1) consider whether to exercise
its discretion to strike the section 12022.5, subdivision (a) and 12022.53, subdivision (b)
firearm enhancements, and, in the event that the court declines to exercise its discretion to
strike them (2) impose sentences on these enhancements and then stay execution of those
sentences pursuant to section 12022.53, subdivision (f). The trial court is directed
thereafter to prepare an amended abstract of judgment reflecting these modifications and
to forward a certified copy of the amended abstract to the Department of Corrections and
Rehabilitation.
/s/
MURRAY, J.
I concur:
/s/
MAURO, J.
93
BLEASE, Acting P. J., Concurring and Dissenting.
In our original opinion in this case, I dissented from the majority’s conclusion that
the Confrontation Clause contention was forfeited. (People v. Blessett (2018)
22 Cal.App.5th 903, 957 (Blease, J., dissenting).) Addressing the confrontation claim on
the merits, I found the admission of case-specific testimonial hearsay through the gang
expert’s testimony violated defendant’s right to confrontation, and, with respect to the
murder conviction, prejudicial under the harmless beyond a reasonable doubt standard.
(See id. at pp. 966-969.) In particular, I found the case-specific hearsay “ ‘supported the
prosecution’s position that defendant was an active member of the Meadowview Bloods,
that, when he shot Sisoukchaleun, he did so for the benefit of that particular criminal
street gang, and that he had the specific intent to assist, further, or promote criminal
conduct by gang members within the meaning of [Penal Code] section 186.22.’
[Citation.]” (Id. at p. 968.) While there was substantial evidence in addition to the
improper gang evidence supporting the prosecution’s theory of a gang-motivated
shooting, “the record did not foreclose a finding that Sisoukchaleun was the aggressor,
and that defendant was acting in self-defense when he shot him.” (Ibid.) I noted, for
example, Thammavongsa’s testimony that “the other guys in their group were ‘[r]ight
there with us, and Thammavongsa confirmed that he would have gotten involved if
defendant had gotten the better of Sisoukchaleun in the fight. Sisoukchaleun was saying,
‘Let’s fight,’ but defendant ‘didn’t really say nothing’ and did not square up to fight.
Sisoukchaleun took a swing at defendant, and defendant dodged out of the way, pulled
out a gun, shot Sisoukchaleun in the face and chest, and fled.” (Ibid.) As to the video
evidence, “[w]hile defendant may have chosen to re-engage Sisoukchaleun and his
friends after retrieving his gun, it is also possible that he simply returned to pick up his
alcohol and Sisoukchaleun and his friends re-engaged defendant. It is not clear. For that
reason, I disagree with the majority’s conclusion that the video evidence negates any
1
claim of self-defense or imperfect self-defense.” (Id. at p. 969.) Since the Confrontation
Clause error was not harmless beyond a reasonable doubt, I would have reversed the
murder conviction and the true findings on the gun and firearm enlacements. (Ibid.)
On remand, the majority and I are now in agreement regarding the lack of
forfeiture, and that the case-specific hearsay in the gang expert’s testimony violated
defendant’s right to confrontation. While I also agree with the majority that the error was
prejudicial with respect to the gang enhancement, and harmless beyond a reasonable
doubt as to the felon in possession of a firearm conviction, for the reasons stated herein
and in my prior dissent, I respectfully disagree with the majority’s conclusion that the
error was harmless beyond a reasonable doubt as to the murder conviction and firearm
enhancements.
/s/
BLEASE, Acting P. J.
2
Filed 5/25/22
Court of Appeal, Third Appellate District - No. C074267
S273349
IN THE SUPREME COURT OF CALIFORNIA
En Banc
________________________________________________________________________
THE PEOPLE, Plaintiff and Respondent,
v.
ANTOINE LAMAR BLESSETT, Defendant and Appellant.
________________________________________________________________________
The petition for review is denied.
Liu and Groban, JJ., are of the opinion the petition should be granted.
See Dissenting Statement by Groban, J.
_______Cantil-Sakauye______
Chief Justice
PEOPLE v. BLESSETT
S273349
Dissenting Statement by Justice Groban
In this case, defendant Antoine Blessett was convicted of
first degree murder after shooting the victim Christopher
Sisoukchaleun in a gang-related altercation. All parties agree
that the jury improperly heard extensive accounts of seven prior
offenses involving Blessett, as well as the details of three
predicate offenses committed by other gang members. Many of
these details were upsetting and violent, including a description
of Blessett pulling a gun on a police officer and ultimately being
shot by the officer; Blessett being shot a second time in a
different gang altercation; and Blessett committing a number of
violent felonies, including an attempted carjacking of a father
while he was loading his child into the automobile. There is no
dispute that all of this evidence was improperly before the jury.
But the majority below concluded the introduction of this
evidence was harmless beyond a reasonable doubt as to
Blessett’s murder conviction. Because there are significant
questions as to whether the introduction of this evidence was
harmless, I would grant review. The central issue in this case
was whether Blessett was acting in perfect or imperfect self-
defense. The People used these prior crimes to full effect,
arguing to the jury that “when we talk about the defendant and
his ties to that street gang, it illuminates for us a little bit about
what his intent was” and “show[s] a little bit of his motive in
committing the crime that he committed.” The issue of self-
defense was close: indeed, Sisoukchaleun’s own cousin testified
1
PEOPLE v. BLESSETT
Groban, J., dissenting statement upon denial of review
that Blessett and Sisoukchaleun exchanged gang slogans; it was
“basically” six on one against Blessett; Sisoukchaleun’s
companions were “[r]ight there with us”; Sisoukchaleun
challenged Blessett to fight; Blessett “didn’t really say nothing”
and “wasn’t squaring up”; and then Sisoukchaleun took the first
swing before Blessett shot Sisoukchaleun. In this context, there
is significant reason to doubt whether the erroneous admission
of a trove of prior violent acts involving Blessett was harmless
beyond a reasonable doubt. (See Chapman v. California (1967)
386 U.S. 18 (Chapman).) The stakes for Blessett are
monumental — he is currently serving 50 years to life on the
murder conviction. I would grant review to consider this issue
and thereby provide additional guidance to our lower courts on
how to apply the Chapman standard for review of constitutional
error.
I. BACKGROUND
This case returns to us after we decided both People v.
Perez (2020) 9 Cal.5th 1 (Perez) and People v. Valencia (2021) 11
Cal.5th 818 (Valencia).
Blessett argued unsuccessfully at his murder trial that he
shot the victim in self-defense or imperfect self-defense. After
his trial, we announced the following rule: “When any expert
relates to the jury case-specific out-of-court statements, and
treats the content of those statements as true and accurate to
support the expert’s opinion, the statements are hearsay.”
(People v. Sanchez (2016) 63 Cal.4th 665, 686.) Furthermore,
“[i]f the case is one in which a prosecution expert seeks to relate
testimonial hearsay, there is a confrontation clause violation
unless (1) there is a showing of unavailability and (2) the
defendant had a prior opportunity for cross-examination, or
forfeited that right by wrongdoing.” (Ibid.) The Court of Appeal
2
PEOPLE v. BLESSETT
Groban, J., dissenting statement upon denial of review
here subsequently affirmed, finding, among other things, that
Blessett’s claims under Sanchez were forfeited, that a gang
expert’s testimony about the underlying facts of predicate
offenses was general background information and not hearsay,
and that even assuming counsel had objected, any error was
harmless beyond a reasonable doubt under Chapman. Justice
Blease dissented. We granted review and held the case pending
disposition of Perez and then held the case pending disposition
of Valencia. In Perez, we held that failure of defense counsel to
object to an expert’s testimony on hearsay grounds before
Sanchez was decided did not forfeit a claim on appeal based on
Sanchez. (Perez, supra, 9 Cal.5th at p. 4.) In Valencia, we held
(again departing from the Court of Appeal here) that predicate
offenses are case-specific under Sanchez and must be proven by
competent evidence. (Valencia, supra, 11 Cal.5th at p. 838.) In
both Perez and Valencia, we expressly disapproved the Court of
Appeal’s original majority opinion. (Perez, at p. 14; Valencia, at
p. 839, fn. 17.) We transferred this case back to the Court of
Appeal.
Upon the case’s return, the Court of Appeal reversed the
gang enhancement but otherwise affirmed. Despite
acknowledging the extensive amount of prejudicial gang
evidence that was impermissibly admitted at trial under
Sanchez, the Court of Appeal majority again found the error
harmless beyond a reasonable doubt as to Blessett’s murder
conviction. For a second time, Justice Blease dissented, arguing
that the errors required reversal of the murder conviction.
Blessett petitioned for review.
II. DISCUSSION
The parties and the Court of Appeal agree that the
standard of reviewing the gang expert testimony admitted in
3
PEOPLE v. BLESSETT
Groban, J., dissenting statement upon denial of review
violation of Sanchez and the Sixth Amendment right to
confrontation is that under Chapman. Under that standard,
“before a federal constitutional error can be held harmless, the
court must be able to declare a belief that it was harmless
beyond a reasonable doubt.” (Chapman, supra, 386 U.S. at
p. 24; see Satterwhite v. Texas (1988) 486 U.S. 249, 258–259
[“The question . . . is not whether the legally admitted evidence
was sufficient to support the death sentence, which we assume
it was, but rather, whether the State has proved ‘beyond a
reasonable doubt that the error complained of did not contribute
to the verdict obtained’ ”].)
Blessett argues that the majority below erred in finding
that the admission of gang expert testimony, admitted in
violation of the Sixth Amendment right to confront witnesses,
was harmless beyond a reasonable doubt under Chapman as to
the murder conviction. Blessett’s contentions have considerable
force. First, this was not a “cut-and-dry” case for the
prosecution. Blessett was 36 years old at the time of the
encounter. The evidence indicated that his last gang-related
activity had been in April 2002, nearly 10 years before the
shooting. The video of the incident — a key piece of evidence in
the case — is of nominal utility: it is of fairly poor quality, has
no sound and, most notably, the actual shooting occurs off
camera. The majority below interprets the video as unhelpful to
Blessett, noting, among other things, that Blessett retrieved a
gun from his truck and “chose to re-engage the group” and that
Blessett was not “surrounded” because “the video shows that
defendant followed [the victim’s] group into the recessed area.”
The majority below further points to the fact Blessett appeared
to ignore the attempts of a third person to de-escalate the
situation and that Blessett, rather than disengaging from the
4
PEOPLE v. BLESSETT
Groban, J., dissenting statement upon denial of review
confrontation, appears to be walking toward Sisoukchaleun as
they move off camera. These points certainly buttress the
contention that Blessett was: (1) not acting solely in self-defense
and that (2) pursuant to CALCRIM No. 3471, the fight
constituted “mutual combat” because it “began or continued by
mutual consent or agreement” and Blessett cannot demonstrate,
as he must, that he “in good faith tried to stop
fighting.” However, there are several facts evident in the video
that are not in dispute and which clearly support Blessett’s
theory of perfect or imperfect self-defense:
• Blessett walked up to the entry area of the liquor store
entrance alone and then waits there.
• A minute and a half later, a group of six men walk up to
the liquor store entrance from different directions.
Blessett is clearly outnumbered.
• After Blessett returns from the truck, a person in the
group gestures with his right hand toward Blessett, and
Blessett twice brings his hands down in a downward
motion.
• Sisoukchaleun takes his outer shirt off and hands it to his
companion (the obvious inference being that he was
preparing to fight Blessett).
• Blessett turns around and walks a few feet away with his
back to the group. Sisoukchaleun follows and then the
group does as well.
• Within a few seconds, Sisoukchaleun walks off camera,
one member of the group puts his hands on Blessett,
Blessett points to him and then walks off camera as well,
5
PEOPLE v. BLESSETT
Groban, J., dissenting statement upon denial of review
and then several others from the group walk off camera
(the shooting soon takes place off camera).
In this way, though the video is clearly subject to
competing interpretations, it is hard to view it as conclusive,
especially since the actual shooting occurs outside of view.
Moreover, as the majority acknowledged, the jury heard
additional testimony that was helpful to Blessett. Weena Vue,
who had met Sisoukchaleun earlier in the night at a casino and
accompanied him to the liquor store, testified that when initially
walking up to the liquor store, Sisoukchaleun uttered the term
“cuz.” A gang expert testified that “[c]rips use the term ‘cuz’ in
personal identification of another.” Vue further testified that
Blessett then invoked the gang term “Meadowview Bloods,” and
Sisoukchaleun invoked the gang term “LAC, Little Asian Crip.”
Sisoukchaleun’s cousin Jack Thammavongsa similarly testified
that, when walking up, both he and Sisoukchaleun were saying
“cuz” and that Sisoukchaleun threw his hands up. After
Blessett said, “Meadowview Bloods,” Sisoukchaleun responded,
“This is LGC.” Blessett obtained the gun from the truck after
Sisoukchaleun had announced his gang affiliation. A forensic
pathologist testified Sisoukchaleun’s blood alcohol level was
0.28 percent. Blessett argues that, outnumbered and afraid,
and already having been challenged and confronted by a rival
gang member, he retrieved the gun for protection (notably, it
appears that Blessett was still waiting for his order to be
prepared by the liquor store, which eventually appears at the
foot of the entrance and is retrieved by his female companion
after the shooting).
The testimony of Sisoukchaleun’s own cousin and fellow
gang member also provided unexpected support to Blessett’s
self-defense claim at trial and explained the moments off camera
6
PEOPLE v. BLESSETT
Groban, J., dissenting statement upon denial of review
when the shooting occurred. 1 Thammavongsa testified that
Sisoukchaleun “got tired of hearing” Blessett say, “ ‘Blood,
Meadowview,’ this and that,” so “he took his shirt off, walked
out to the street.” Thammavongsa followed him into the street
off camera. The group was “[r]ight there with us.”
Sisoukchaleun was saying, “What’s up? Let’s fight. Let’s fight,”
but Blessett “didn’t really say nothing” and “wasn’t squaring up”
to fight. Thammavongsa admitted he was a Lao Gangster Crip
and that he would have intervened if Sisoukchaleun was getting
beaten up. Thammavongsa acknowledged that it was
“basically” six on one but later clarified that the others in the
group “didn’t really know what was going on.” Sisoukchaleun
took a swing at Blessett. Blessett “dodged it and pulled a gun
out.” Blessett shot Sisoukchaleun in the chest and fired “two or
three times.” This testimony — again from the victim’s own
cousin and fellow gang member — is highly supportive of the
defense theory that Blessett was not engaged in mutual combat
and that he ultimately acted out of his fear of his own safety:
the victim (who was very intoxicated) exchanged gang
challenges with the defendant; the victim then took his shirt off
and challenged the defendant to a fight while the defendant was
silent and not “squaring up” to fight; the victim’s cousin followed
the two men and was prepared to back up the victim; the victim’s
four other male companions were “right there with us” while the
defendant was alone (save for his sole female companion); and
1
Thammavongsa’s testimony was in contrast with the
prosecutor’s initial theory in opening statements “that with no
warning whatsoever, the defendant just pulled that gun out of
his right rear pocket, put it to the victim’s head, and shot him
at almost point blank range, right between the eyes.”
7
PEOPLE v. BLESSETT
Groban, J., dissenting statement upon denial of review
the victim took the first swing at the defendant, which the
defendant dodged and then pulled out a gun and shot the victim.
Against this backdrop of a less than an overwhelming case
for first degree murder, the Attorney General concedes that
extensive gang evidence was improperly admitted under our
three related decisions in Sanchez, Valencia, and Perez. The
majority below summarized the improper evidence involving
Blessett as follows: “the November 1991 incident when
defendant was shot in the back allegedly in relation to a rivalry
between the Oak Park Bloods and the Meadowview Bloods; the
December 1992 incident where defendant was arrested for a
felony warrant and admitted possession of rock cocaine found at
the location; the June 1993 incident when he was in a car with
another when a firearm was found in the car; an incident in
October 1993 when, while running from the police, he displayed
a firearm and was shot by the officer; the January 1995 police
contact involving a domestic violence call; his commission of
armed robbery in September 1995; and his commission of
unspecified gang crimes in April 2002 with a Del Paso Heights
Blood.”
Thus, the gang expert improperly testified to Blessett’s
participation in seven prior incidents, many of them very violent
and with gang overtones. Testimony about the October 1993
incident where Blessett pulled a loaded rifle on a police officer
was particularly prejudicial. Specifically, the gang expert
testified that a “Sacramento [Police Department] officer was
working patrol. He observed an individual riding a bicycle. He
attempted to stop that individual, ended up later being
identified as Mr. Blessett. The individual on the bicycle
attempted to flee, and subsequently got off the bicycle, tried to
take off running as the officer was giving chase to him. As
8
PEOPLE v. BLESSETT
Groban, J., dissenting statement upon denial of review
[Blessett] was pulling the rifle out, the officer, fearing for his
life, shot at Mr. Blessett, striking him at the time, and he was
subsequently taken into custody at that location.” Testimony
about Blessett’s October 1992 commission of an armed robbery
and a September 1995 attempted carjacking was also highly
prejudicial. For the October 1992 armed robbery, the gang
expert testified that an “individual by the last name of Walters
was approached by two male Blacks. One of them produced a
firearm, pointed it at the victim and said, ‘Break yourself.’ Mr.
Blessett was later identified as the individual with the gun.” For
the September 1995 attempted carjacking, the gang expert
testified that while the victim was loading his daughter into his
vehicle, “he observed two male Blacks [one of whom was later
identified as Blessett] wearing ski masks. And one of the
individuals pointed a handgun at him and told — demanded
victim’s wallet and keys at the time. Victim took off running, at
which time the occupants of the vehicle wearing ski masks also
fled.” This evidence, which all parties concede was improperly
before the jury, painted a very damaging image of a defendant
claiming self-defense. The jury heard detailed accounts of
Blessett’s involvement in no less than seven improperly
admitted felonies, dating back over two decades. Some of the
details are both disturbing and violent, including: Blessett
being shot in a gang confrontation; Blessett being shot a second
time, this time by police after pulling a rifle on an officer;
Blessett committing armed robbery;2 and Blessett committing
2
The jury heard additional testimony about Blessett
robbing a woman, but this testimony was later stricken for an
unspecified reason.
9
PEOPLE v. BLESSETT
Groban, J., dissenting statement upon denial of review
an attempted armed carjacking of a father who was with his
young child.
The majority further found that the gang expert
improperly testified to the details of three predicate offenses
committed by three other fellow gang members — including
testimony about active participation in a street gang, battery,
first degree burglary, and assault by means likely to cause great
bodily injury. While not directly involving Blessett, this
testimony went into great detail on a particularly violent
incident involving the Meadowview Bloods gang and was
damaging to Blessett’s defense as well. The gang expert gave
extensive testimony regarding three Meadowview Bloods
members making an unprovoked attack on a victim standing in
his front yard and then assaulting the victim’s two sons who had
come to their father’s aid. The officer described to the jury that
the three men then obtained a gun from their vehicle and
attempted to gain entry to the house.
The prosecutor’s closing arguments and the jury
instructions further compounded the prejudice from the
improper testimony. The prosecutor argued in closing argument
that “when we talk about the defendant and his ties to that
street gang, it illuminates for us a little bit about what his intent
was and why, really why he would do what he does to benefit
the gang. [¶] Okay. So, we use that to some extent to help show
that mentality, to help show why it is that he would be looking
to benefit that gang. And also, to show a little bit of his motive
in committing the crime that he committed.” The jury was then
instructed to consider the “evidence of gang activity” to decide
motive and intent and “to evaluate the credibility or
believability of a witness.” Thus, consistent with the
prosecutor’s arguments, the jury was instructed to consider the
10
PEOPLE v. BLESSETT
Groban, J., dissenting statement upon denial of review
improper gang evidence for intent, as well as to evaluate the
credibility of witnesses in a case that turned on whether Blessett
had the intent necessary for first degree murder. Indeed, there
was no dispute that Blessett shot and killed Sisoukchaleun.
Rather, defense counsel argued at trial that Blessett acted in
perfect or imperfect self-defense. The fact that Blessett argued
in the alternative is crucial here. The issue of Chapman error
does not turn solely on whether Blessett might have been
acquitted under a perfect self-defense theory. Instead, the
relevant inquiry also must address whether the improperly
admitted evidence prejudiced his theory of imperfect self-
defense, whereby even if the jury were to find that Blessett’s
belief in the need to use deadly force was unreasonable, the jury
could nonetheless return a verdict of voluntary manslaughter
instead of first degree murder (assuming they found Blessett
actually believed that he was in imminent danger of great bodily
injury, and the immediate use of deadly force was necessary to
defend against the danger). (See CALCRIM No. 571.) As the
Supreme Court said in Chapman: “[T]hough the case in which
this occurred presented a reasonably strong ‘circumstantial web
of evidence’ . . . , it was also a case in which, absent the
constitutionally forbidden [evidence], honest, fair-minded jurors
might very well have brought in not-guilty verdicts [or verdicts
on lesser charges]. Under these circumstances, it is completely
impossible for us to say that the State has demonstrated, beyond
a reasonable doubt, that the [improper evidence] did not
contribute to petitioners’ convictions.” (Chapman, supra,
11
PEOPLE v. BLESSETT
Groban, J., dissenting statement upon denial of review
386 U.S. at pp. 25–26, citation omitted.)3 In short, in a case in
which Blessett put on a robust defense supporting a theory of at
least imperfect self-defense (including helpful testimony from
the victim’s own relative), I find it difficult to conclude “that the
State has demonstrated, beyond a reasonable doubt, that” the
improper inclusion of evidence concerning seven prior felonies,
many of them violent, as well as the details of three violent
predicate offenses, did not contribute to Blessett’s conviction for
first degree murder. (Id. at p. 26.)
A grant of review here could not only remedy a potentially
erroneous conviction, but would also allow this court to provide
further guidance on the application of harmless error review.
The decision below shows that the application of harmless error
review may well have been applied in a way that Chapman does
not support. For example, the majority below concludes, in part,
that admission of the gang evidence is harmless beyond a
reasonable doubt because there was evidence that Blessett
killed, not in self-defense, but “because of gang-related animus.”
While Sisoukchaleun and Blessett initially exchanged gang
terms (and that evidence was admissible), seven prior offenses
implicating Blessett were improperly admitted to support the
idea that Blessett killed “because of gang-related animus.” As
3
As the majority below highlighted, there was properly
admitted evidence supporting the prosecution’s theory of a
gang-motivated shooting, including: Blessett’s “Meadowview”
tattoo; his jail phone conversations in which he indicated he
was a “blood” and that he had previously been shot in a gang
shooting; his attempt to conceal evidence after the incident; his
statements to police, in which he stated that he was not the
shooter; and evidence that he shot Sisoukchaleun in the face in
close range, as well as a second shot in the torso.
12
PEOPLE v. BLESSETT
Groban, J., dissenting statement upon denial of review
described above, the prosecutor expressly argued that this
improperly admitted evidence “show[s] a little bit of his motive
in committing the crime that he committed.” Thus, the evidence
that the Court of Appeal concedes was improperly admitted
helped support the very theory that the Court of Appeal
concludes makes his conviction harmless. This cannot be.
Blessett rightfully suggests that we grant review to clarify that
appellate courts must not overlook evidence and alternate
inferences favoring the defense position in conducting harmless
error analysis under Chapman. Indeed, Chapman requires that
we look “to the ‘whole record’ ” rather than simply concluding
the People’s alternate inferences from the evidence seem more
plausible than the defendant’s. (People v. Aranda (2012) 55
Cal.4th 342, 367 [“When there is ‘ “a reasonable possibility” ’
that the error might have contributed to the verdict, reversal is
required”].)
In sum, this is a case where a jury heard a detailed
description of a string of violent gang-related acts committed by
Blessett and his fellow gang members. The People in closing
argument, and the jury instructions themselves, instructed the
jury that they could use this evidence to determine his intent
and motive in committing the charged crime. But there is no
dispute that the jury should not have heard this evidence. And
the jury considered it in the context of a less than overwhelming
case for the prosecution: Blessett was approached at the liquor
store by six men who immediately began exchanging gang
slogans; the victim “got tired of hearing” Blessett’s gang slogan,
took off his shirt, and challenged Blessett to fight; Blessett
“didn’t really say nothing” and “wasn’t squaring up”; and then,
with his companions “[r]ight there with us,” the victim took the
first swing at Blessett, who responded by shooting the victim.
13
PEOPLE v. BLESSETT
Groban, J., dissenting statement upon denial of review
In this context, there are genuine questions about whether
Blessett’s conviction, which virtually ensures that he will spend
the rest of his life in prison, is valid.4 I would grant review.
GROBAN, J.
I Concur:
LIU, J.
4
See Penal Code section 1473, subdivision (b)(3)(A) (a writ
of habeas corpus may be prosecuted for, inter alia, new
evidence “that is credible, material, presented without
substantial delay, and of such decisive force and value that it
would have more likely than not changed the outcome at
trial”).
14