PEOPLE v. SOLANONo. B222662.

THE PEOPLE, Plaintiff and Respondent,
v.
ERIC J. SOLANO, Defendant and Appellant.

Court of Appeals of California, Second District, Division Seven.
Filed May 16, 2011.
John Steinberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Chung L. Mar and Corey J. Robins, Deputy Attorneys General, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

PERLUSS, P. J.

Eric J. Solano appeals from his convictions following two jury trials of attempted willful, deliberate and premeditated murder of a peace officer, three counts of assault with a firearm upon a peace officer, possession of marijuana for sale and possession of a firearm in violation of a probation condition with true findings Solano had used a firearm during the commission of the attempted murder, aggravated assault and drug offenses and all the offenses except the drug charge had been committed to benefit a criminal street gang. (Pen. Code, § 186.22, subd. (b)(1)(c).)1

Solano contends insufficient evidence supports the first jury's true finding he used a gun in the commission of the possession-for-sale offense or, alternatively, the court should have stayed imposition of that firearm-use enhancement under section 654. Solano also contends the court erred by failing to bifurcate the criminal street gang allegations before his retrial on the attempted murder and aggravated assault counts, allowing the People to introduce expert testimony to prove Solano's intent when he shot at police officers, allowing the People to refer to the officers as "victims" during the trial, admitting prejudicial and irrelevant evidence that Solano's older brother, Oscar Solano, had been convicted of a gang-related double homicide and dismissing a juror for cause during deliberations.2 We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Charges

Solano was charged in an information filed June 12, 2008 with one count of attempted premeditated, deliberate and intentional murder of a peace officer (§§ 187, subd. (a), 664, subds. (e), (f)), five counts of assault with a firearm on a peace officer (§ 245, subd. (d)(1)), possession of marijuana for sale (Health & Saf. Code, § 11359) and possession of a firearm in violation of an express condition of probation (§ 12021, subd. (d)(1)). It was specially alleged that Solano had both used and personally discharged a firearm within the meaning of section 12022.53, subdivisions (b) and (c), in committing attempted murder and the aggravated assaults on police officers, that he had personally used a firearm within the meaning of section 12022.5, subdivision (a), in committing the possession-for-sale offense and that each of the offenses had been committed to benefit a criminal street gang.

2. The First Trial

a. The People's evidence

A search warrant for the home in which Solano and members of his extended family were living was obtained based on information Solano, a suspected member of the Northside Bolen Parque gang, was selling illegal drugs from the residence. At 5:00 a.m on February 27, 2008, 13 officers of the Baldwin Park Police Department's special response team and additional police personnel executed the warrant. Officers knocked on the front door and announced their presence in Spanish and English. After hearing what sounded like someone running away from the door, officers began to forcibly enter the home. Because officers were having a difficult time prying open the metal security door, another officer broke a nearby window to cause a distraction and to see into the residence while officers continued making announcements. About 10 seconds later, as officers were entering through the front door, Solano fired a gun at them. Officers returned fire, hitting Solano in the chest and neck.

Eight people, including children, were in the home when the search warrant was executed. Guillermo Solis, the long-time boyfriend of Solano's mother, Leticia, and father of two children with her, testified he was sleeping in the living room with Leticia and their son when he was awakened by pounding on the door. After the window broke he saw police officers wearing uniforms and helmets and heard them say, "Police, open the door." Solano's younger sister, Crystal Solano, testified she was sleeping in one of the two bedrooms with three people when she was awakened by banging on the doors and windows and screaming. Crystal ran into the living room to see what was happening, and her mother was screaming Guillermo's name. Crystal heard officers yelling, "search warrant, search warrant." Crystal began pulling her mother toward the bedroom when the shooting began.

Officers recovered a revolver from under Solano's leg, 400 grams of marijuana from the bedroom, two scales and two boxes of plastic sandwich bags. Baldwin Park Police Officer Mike Hemenway, one of the officers who executed the search warrant and an expert on possession of narcotics for sale, opined, given "the packaging material, the scales, the amount of marijuana, and the firearm," the marijuana, valued at between $350 and $6,000, was possessed for sale. Officer Hemenway explained the purpose of the firearm was "to protect [Solano] from people that want to steal from him or the police."

Baldwin Park Police Detective Mark Adams, also a member of the special response team, testified both as a participant in the incident and as an expert on criminal street gangs. In addition to testifying to the primary criminal activities of Northside Bolen Parque (vandalism, theft, robbery, witness intimidation and violent crimes), the gang's alliance with the Mexican Mafia and evidence of Solano's membership in the gang),3 Detective Adams opined, "The act of shooting at a police officer, without a doubt, has an effect on [Solano's] status within the gang." Detective Adams explained, "Each and every time that a police officer is assaulted by a member of a gang, the members of that gang hold that individual in higher esteem. They know that he's ruthless, that he's basically instilled in the community a fear that the gang is willing to assault anybody." "It allows the gang to operate with impunity because they definitely don't fear that the community is going to call the police when they are that ruthless. They are willing to take out a member of the community if they are willing to take out a police officer."

Detective Adams identified photographs of graffiti taken near Solano's home approximately nine months after the incident. One photo stated, "FUCK THE PIGS!" with an NSBP notation near it; another photo taken near the first had graffiti including, "FUCK THE COPS."

Detective Adams denied on cross-examination that what occurred could have been "an attempted suicide by cop"—that is, where a person provokes officers to fire at him or her in an effort to commit suicide—even though it is likely firing a gun at 13 police officers with high-powered weapons will provoke them to fire back with potentially lethal consequences.

b. The defense's evidence

Testifying on his own behalf, Solano, who was 20 years old at the time of trial, admitted he had been associated with the Northside Bolen Parque gang since he was 16 years old. Solano claimed he was not an actual member of the gang because he had never been "jumped in," that is, given the beating most gang members must endure to be initiated, because his brother, Oscar Solano, who was sentenced in January 2005 to life in prison, is a gang member. Solano explained he would have been permitted to leave the gang life because he had not been jumped in and had been planning to move to Washington with his pregnant girlfriend to live with her mother, who was going to give him a job.4

Solano admitted he was selling marijuana at the time the search warrant was executed. He testified he was sleeping in a bedroom when he heard loud noises, banging on the bedroom door and his mother screaming his name. Solano jumped out of bed, opened the bedroom door and saw the front door shaking like someone was trying to break in; his mother also told him someone was trying to break in. Solano ordered his mother to go to her room and call the police. He then went back into the bedroom and retrieved a gun he kept for protection.5 As he was leaving the bedroom, he saw the window break. In response he fired a warning shot below the broken window not knowing police officers were outside. Solano explained he probably would have thrown the marijuana in the toilet and the gun out the window if he had known the police were there. Solano also testified three people in the neighborhood had been murdered a few days earlier, and he was frightened that could happen to him.

On redirect examination Solano admitted harming a police officer enhances a gang member's reputation within the gang and, had he killed a police officer during the incident, he believed it would have enhanced his reputation within the gang.

c. The verdict

The first jury could not reach a unanimous verdict on the counts charging Solano with the attempted murder of a peace office and aggravated assault on other officers, but convicted him of possession of marijuana for sale and possession of a firearm in violation of a probation condition and found true special allegations he had used a firearm in the commission of the marijuana offense and the firearm had been possessed for the benefit of a criminal street gang. The jury could not agree whether Solano had been selling marijuana to benefit a criminal street gang.

3. Solano's Motion To Bifurcate

Before his retrial on the attempted murder and aggravated assault charges, Solano moved to bifurcate trial of the criminal street gang allegations relating to those counts.6 Solano's counsel argued, "I believe that the evidence bears me out, that this is a very simple case where an individual believed that someone was breaking into his house and acted accordingly in what he perceived to be an act of self-defense. The prosecutor would be unable completely to prove this case beyond a reasonable doubt without bringing in this voodoo science, which he refers to as gang evidence, spoken by a so-called gang expert, who I don't believe has taken one course in behavioral sciences in his life. And I just believe essentially that the . . . jury was hoodwinked into believing that he knew that these were police officers, and, with that knowledge, went out and attempted to kill them so that he would be killed and, thus, gain respect in the gang. I believe the entire argument is an absurdity and a conviction would be an atrocity . . . ."

The trial court denied the motion, explaining, "Gang evidence as to the assaultive behavior may explain his motive. . . . And if the gang evidence were to be believed, might explain [Solano's] sudden, violent behavior, and might explain [Solano's] state of mind as he engaged in that sudden, violent behavior."

4. The Second Trial

a. The People's evidence

Many of the witnesses from the first trial presented largely consistent testimony at the second trial. Detective Adams testified again that gangs benefit from engaging in violence against police officers because it dissuades citizens from reporting crimes and testifying against gang members and that gang members who engage in such violence gain the respect of their fellow gang members. On cross-examination Detective Adams acknowledged a gang member who kills a police officer could attract undesirable attention to the gang as law enforcement searches for the perpetrator, but denied he had seen or heard gang experts opine that murdering a police officer would cause a gang member to be ostracized.

As at the first trial, defense counsel asked whether "suicide by cop" was a reasonable explanation for Solano's conduct and urged Detective Adams to "[p]retend you're on the jury in your own mind." After Adams responded it was difficult for him to do that because he knew all the facts, defense counsel asked, "But your opinion is—" Adams responded, "My opinion is that he shot at the police to promote his gang, to promote himself, to avoid apprehension, because he has a long-standing dislike of the police. And the gang culture has taught him that the police are about the worst thing on earth and shooting at them doesn't seem like it's as awful as it would seem to regular citizens like the jury."

b. The defense's evidence

Solano testified there was an old, noisy air conditioning unit in his bedroom that was "banging and clanging" the morning the search warrant was executed even though the outside air temperature was in the 50s. Solano explained, "I like to turn it on because in the morning where my room is at, the sun always hits it . . . so I just leave it on so I don't have to wake up in the morning and turn it on." Although Solano testified at the first trial he woke to loud banging outside his bedroom and his mother screaming his name, at the second trial he stated his mother was screaming, but "I couldn't hear her. I don't know if she was screaming my name but she was screaming loud."

Solano also presented the testimony of gang expert Dr. James Shaw. Dr. Shaw opined that it is uncommon for a gang member to deliberately shoot at a police officer and that gangs have punished their members for such conduct because it incites the police to conduct raids and arrests in their territory and invites other forms of retaliation. Dr. Shaw also explained the increased police scrutiny damages gangs' ability to generate revenue from drug and weapon sales, which adversely affects their reputation among other gangs.

On cross-examination Dr. Shaw's credibility was challenged by the prosecutor. For example, the prosecutor established Dr. Shaw knew virtually nothing about the Northside Bolen Parque gang, was not sure if he had ever spoken with anyone from that gang and had never interviewed Solano. Essentially the only preparation he had done in connection with the case was to review an email from Solano's counsel, which was admitted into evidence, meet with counsel for about an hour and talk to Solano's mother. Dr. Shaw was unfamiliar with several specific cases in which police officers had been shot by gang members, did not know generally how many officers annually were the victims of attempted murder or assault by southern Hispanic gang members and was not familiar with a unit in the district attorney's office devoted to crimes against police officers.

The prosecutor also questioned Dr. Shaw about an internet social media profile Dr. Shaw had posted, but had removed before trial. The profile, which was admitted into evidence, stated in part, "If you don't have an Expert, the court can treat you like dirt. If you don't want time in jail, and don't want to be somebody's shemale, then tell your lawyer to call me. If you don't want time in the state pen, and don't want to be somebody's bitch-twin, then tell your lawyer to call me. If you want to be free to go home, instead of going to prison to be somebody's maricon, tell your lawyer to call me. . . . Your lawyer and I can work together for your defense. Judges, lawyers, and police buy and read my book (`Jack and Jill, Why They Kill') all over Los Estados Unidos. When lawyers introduce me in Court, Judges and Juries respect that. Estoy serio. Rich folks have Experts supporting them in court. Why don't you?" Dr. Shaw explained he had removed the profile "[b]ecause it was brought up by one of your colleagues in a different court not so long ago, and . . . and one of your colleagues was trying to embarrass me in court by making it look like I had something solicitous up there, and I didn't."

c. The verdict

The second jury found Solano guilty of attempted willful, deliberate and premeditated murder of a peace officer and three counts of assault with a firearm upon a peace officer. The jury also found true the special allegations Solano had used a firearm during the commission of the offenses and the offenses had been committed to benefit a criminal street gang.7

5. The Sentence

The trial court sentenced Solano to an aggregate state prison term of 88 years, eight months to life: an indeterminate term of 15 years to life for the attempted, premeditated murder of a police officer, plus 20 years for the use of a firearm in the commission of the attempted murder (§ 12022.53, subd. (c)); a consecutive determinate term of eight years for the count three assault with a firearm on a police officer, plus 10 years for the criminal street gang enhancement, plus 20 years for the use of a firearm (§ 12022.53, subd. (c)); a further consecutive term of two years for the count four assault with a firearm on a peace officer (one-third the middle term), plus three years, four months for the criminal street gang enhancement, plus six years, eight months for the use of a firearm (§ 12022.53, subd. (c)); a consecutive term of eight months for possession of marijuana for sale (one-third the middle term), plus one year, four months for the use of a firearm (§ 12022.5, subdivision (a)); and a consecutive term of eight months for possession of a firearm by a prohibited person (one-third the middle term), plus one year for the criminal street gang enhancement. The sentence for the count two assault with a firearm on a police officer—the same officer who was the victim of the attempted murder—was stayed pursuant to section 654.

DISCUSSION

1. Substantial Evidence Supports the Jury's True Finding Solano Used a Gun in the Commission of the Possession-for-sale Offense

a. Standard of review

To assess a claim of insufficient evidence in a criminal case, including whether substantial evidence supports a firearm enhancement (People v. Wilson (2008) 44 Cal.4th 758, 806), "we review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime or special circumstances beyond a reasonable doubt. [Citation.] The record must disclose substantial evidence to support the verdict—i.e., evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. [Citation.] `Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]' [Citation.] A reversal for insufficient evidence `is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support"' the jury's verdict." (People v. Zamudio (2008) 43 Cal.4th 327, 357.)

b. Sufficient evidence supports the firearm-use enhancement

A person who is armed with or uses a firearm during the commission of a felony or attempted felony is subject to increased punishment. The Legislature, drawing "a distinction between being armed with a firearm in the commission of a felony and using a firearm in the commission of a felony," has "made firearm use subject to more severe penalties. (Compare § 12022.5 [providing for increased punishment of between three and ten years for firearm use in the commission of a felony] with § 12022 [in general imposing a one-year sentence enhancement for being armed with a firearm in the commission of a felony . . .].)" (People v. Bland (1995) 10 Cal.4th 991, 996-997; accord, Alvarado v. Superior Court (2007) 146 Cal.App.4th 993, 1000.)

"A defendant is armed if the defendant has the specified weapon available for use, either offensively or defensively." (People v. Bland, supra, 10 Cal.4th at p. 997.) When a defendant engages in a crime of a continuing nature, like felony drug possession, the defendant is considered armed within the meaning of section 12022, subdivision (a), if the defendant "has a weapon available at any time during the felony to aid in its commission." (Bland, at p. 999; see id. at p. 995 ["when the prosecution has proved a charge of felony drug possession, and the evidence at trial shows that a firearm was found in close proximity to the illegal drugs in a place frequented by the defendant, a jury may reasonably infer: (1) that the defendant knew of the firearm's presence; (2) that its presence together with the drugs was not accidental or coincidental; and (3) that, at some point during the period of illegal drug possession, the defendant had the firearm close at hand and thus available for immediate use to aid in the drug offense"]; accord, People v. Pitto (2008) 43 Cal.4th 228, 239 [declining to overrule Bland].)

A defendant uses a firearm if he or she displays the firearm in a menacing manner, intentionally fires it or intentionally strikes or hits a human being with it. (See People v. Johnson (1995) 38 Cal.App.4th 1315, 1319 [definition of personal use in § 1203.06 is applicable to § 12022.5]; People v. Bland, supra, 10 Cal.4th at p. 997 ["[a]lthough the use of a firearm connotes something more than a bare potential for use, there need not be conduct which actually produces harm but only conduct which produces a fear of harm or force by means or display of a firearm in aiding the commission of one of the specified felonies"].)

Solano concedes he was armed with a firearm in connection with possessing marijuana for sale, but, in arguments reciting inconsistent and erroneous versions of the facts, contends there was no evidence the gun was used to aid in the commission of the offense. In his opening brief Solano mistakenly argues the marijuana was found in the garage, while the gun was in the bedroom. In his reply brief Solano acknowledges the marijuana was found in the bedroom, but, after stating the gun had been under his bed, then argues on the following page he retrieved it from under the couch in the living room.

Even if we ignore these significant conflicts, there is no merit to Solano's contention that the evidence supports only the inference he used the gun in connection with the attempted murder and aggravated assault charges, not to facilitate his possession of marijuana for sale. Indeed, Solano's argument is belied by his theory of defense at the first trial that he believed intruders may have been breaking into his home, so he fired a warning shot to scare them away. The first jury was entitled to infer from Solano's own testimony, as well as Officer Hemenway's, who opined Solano possessed the marijuana for sale in part because he possessed a gun "to protect [himself] from people that want to steal from him," that Solano was attempting to defend against the theft of his marijuana, as well as to protect his home. Although there may also have been evidence suggesting a different purpose for retrieving and firing the gun, the jury was not required to accept that explanation or even to conclude that Solano used the gun during the incident for a single purpose. (Cf. People v. Bland, supra, 10 Cal.4th at p. 999 [explaining the Court had deemed immaterial in People v. Fierro (1991) 1 Cal.4th 173 "whether the defendant had used the gun `during the actual taking or against the actual victim,' so long as he had used it `in the commission' of the robbery, that is, any time during and in furtherance of the robbery"]; see generally In re Tameka C. (2000) 22 Cal.4th 190, 197 ["`[t]he obvious legislative intent to deter the use of firearms in the commission of the specified felonies requires that "uses" be broadly construed'"].)

2. Solano's Sentence Does Not Violate Section 654

Solano contends the trial court erred by enhancing the possession-for-sale sentence for firearm use pursuant to section 12022.5, subdivision (a), because his sentence was also enhanced for the same firearm use with the same victims in connection with the attempted murder and aggravated assault charges (§ 12022.53, subd. (c)). According to Solano firing the weapon was a single act, and there was no evidence he harbored separate intents.8

Section 654 prohibits separate punishment for multiple offenses arising from the same act or from a series of acts constituting an indivisible course of criminal conduct. (People v. Rodriguez (2009) 47 Cal.4th 501, 507; People v. Latimer (1993) 5 Cal.4th 1203, 1216.)9 "`Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.'" (Rodriguez, at p. 507; accord, People v. Lewis (2008) 43 Cal.4th 415, 519.)

Section 654 does not prohibit imposition of the same sentencing enhancement, if proved, to several underlying offenses if those offenses themselves are not subject to section 654. (See People v. Akins (1997) 56 Cal.App.4th 331, 339 ["[a]lthough defendant may have had one objective"—to benefit his gang—it did not violate § 654 to impose gang enhancements for robbery and assault; the robberies and assault were separate crimes subject to separate punishments]; cf. People v. Oates (2004) 32 Cal.4th 1048, 1065 [imposition of multiple § 12022.5 firearm enhancements when there were two victims of a single shot is "consistent with `the law' that permits imposition of separate punishment for each `substantive offense'"; "`use enhancements simply follow from the allegations having been sustained as to the substantive offenses of assault with a firearm'"].) Because possession of marijuana for sale is a distinct crime with a different intent than aggravated assault or attempted murder, imposition of the firearm-use enhancement for the possession-for-sale offense as well as the assaultive offenses did not violate section 654.

2. The Trial Court Did Not Abuse Its Discretion in Denying Solano's Motion to Bifurcate

To obtain a true finding on an allegation of a criminal street gang enhancement, the People must prove the crime at issue was "committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members . . . ." (§ 186.22, subd. (b)(1).) To prove a gang is a "criminal street gang," the prosecution must demonstrate it has as one of its "primary activities" the commission of one or more of the crimes enumerated in section 186.22, subdivision (e), and it has engaged in a "pattern of criminal gang activity" by committing two or more such "predicate offenses." (§ 186.22, subds. (e), (f); see People v. Gardeley (1996) 14 Cal.4th 605, 617.)

Bifurcation of the trial of a gang enhancement allegation is permitted, but the decision to bifurcate lies within the discretion of the trial court. (See People v. Hernandez (2004) 33 Cal.4th 1040, 1049-1050.)10 As the Supreme Court observed in Hernandez, gang evidence often is relevant to establish motive, identity, modus operandi or specific intent. (Id. at p. 1049; see People v. Garcia (2008) 168 Cal.App.4th 262, 275 ["`"[B]ecause a motive is ordinarily the incentive for criminal behavior, its probative value generally exceeds its prejudicial effect, and wide latitude is permitted in admitting evidence of its existence."'" [Citation.] Accordingly, when evidence of gang activity or affiliation is relevant to motive, it may properly be introduced even if prejudicial."]; People v. Martin (1994) 23 Cal.App.4th 76, 81-82 [evidence of gang activity relevant to defendant's motive and intent and shed light on his claim he was acting in self-defense; "[t]here was no need for, and in fact, no reasonable way to bifurcate the enhancement allegation"].) Bifurcation is required only when evidence of the predicate acts required to establish the gang enhancement, which need not be related to the charged crime or even the defendant, is unduly prejudicial or when gang evidence relating to the defendant is "so extraordinarily prejudicial, and of so little relevance to guilt, that it threatens to sway the jury to convict regardless of the defendant's actual guilt." (Hernandez, at p. 1049.)

The trial judge, who had presided at the first trial and was familiar with the issues and the evidence, did not abuse his discretion in denying Solano's bifurcation motion. (See People v. Catlin (2001) 26 Cal.4th 81, 110-111 ["[w]e examine the record before the trial court at the time of its ruling to determine whether the court abused its discretion in denying the severance motion"].) Whether Solano knew or reasonably should have known he was shooting at police officers was a key issue at trial with the People and the defense providing markedly different theories for Solano's actions. Understanding why a gang member might shoot at police officers was fundamental to the prosecution's case. Gang evidence, including the expert's opinion supporting the People's theory that Solano fired at the officers to enhance his reputation in his gang, was therefore probative of an essential element of the attempted murder and aggravated assault charges. Indeed, Solano himself testified at the first trial in response to questioning by his own attorney that harming or killing a police officer would have enhanced his reputation in the gang. Accordingly, because the evidence would have been admitted even if there were no criminal street gang enhancements alleged, it was entirely proper for the court to deny Solano's motion to bifurcate those allegations.11

3. Any Error in Admitting Detective Adam's Testimony Regarding Solano's Subjective Knowledge and Intent Was Invited

To establish the elements required for a criminal street gang enhancement, the Supreme Court has repeatedly affirmed the use of expert testimony provided by law enforcement professionals who have experience in the area of gang culture and psychology. (See, e.g., People v. Gardeley, supra, 14 Cal.4th at p. 618 [expert testimony by police detective particularly appropriate in gang enhancement case to assist fact finder in understanding gang behavior]; People v. Gonzalez (2006) 38 Cal.4th 932, 944-946 [reaffirming Gardeley and admissibility of officer's expert testimony in the area of gang culture and psychology]; see also People v. Olguin (1994) 31 Cal.App.4th 1355, 1384 ["[i]t is difficult to imagine a clearer need for expert explication than that presented by a subculture in which this type of mindless retaliation promotes `respect'"].)

Generally, a gang expert may give opinion testimony based on hypothetical questions rooted in the evidentiary facts. (People v. Gardeley, supra, 14 Cal.4th at p. 618.) An expert may not testify as to the subjective knowledge and intent of a specific individual. (People v. Gonzalez, supra, 38 Cal.4th at p. 946; People v. Killebrew (2002) 103 Cal.App.4th 644, 658.) Solano contends Detective Adams's testimony that he believed Solano "shot at the police to promote his gang, to promote himself to avoid apprehension, because he has a long-standing dislike of the police" and that the gang culture had taught him shooting at the police is not as "awful as it would seem to regular citizens like the jury" ran afoul of this restriction on expert testimony because it addressed Solano's subjective state of mind.

Had this testimony been elicited on direct examination by the People, we might agree with Solano. It was not. On cross-examination Solano's counsel asked Detective Adams a series of hypothetical questions about "suicide by cop" and then followed with a question about Solano's subjective state of mind: "But it would be fair to say that if Mr. Solano knew that they were police officers, and he shot at them anyway, that would be a reasonable, plausible explanation of his conduct other than he wanted to kill them to gain respect?" In attempting to clarify the question for Detective Adams, Solano's counsel pressed further, asking him to put himself in the mind of the jury. Still unable to obtain a satisfactory answer, Solano's counsel asked an open-ended question about Detective Adam's opinion. The challenged opinion testimony was given in response to that broad question. The opinion concerning Solano's subjective state of mind was clearly invited by Solano's counsel and is not cognizable on appeal. (See, e.g., People v. Gutierrez (2002) 28 Cal.4th 1083, 1139 [doctrine of invited error precluded defendant from arguing on appeal trial court had erred in ruling he could be impeached with a prior assault conviction because defense counsel had first elicited testimony before jury defendant had been in prison for assault on a police officer]; People v. Williams (2009) 170 Cal.App.4th 587, 620 ["[T]he testimony about which defendant now complains was elicited by his own counsel. Thus, any error was invited, and defendant may not challenge that error on appeal."].)12

4. Evidence of Oscar Solano's Gang Affiliation and Murder Conviction Was Not Unduly Prejudicial

Solano contends evidence that Oscar Solano had been convicted of a gang-related double murder, admitted to show Solano's animosity toward the police and as a predicate act for the gang enhancements, was highly inflammatory, minimally probative and cumulative given the admission of other evidence to prove the predicate acts. Solano argues the evidence impermissibly portrayed him as following in his brother's footsteps, substituting evidence of criminal propensity for proof he intentionally shot at police officers.

As discussed, "gang evidence is admissible if relevant to motive or identity, so long as its probative value is not outweighed by its prejudicial effect." (People v. Williams (1997) 16 Cal.4th 153, 193.) Nevertheless, "because it may have a highly inflammatory impact on the jury, trial courts should carefully scrutinize such evidence before admitting it." (Ibid. ["admission of evidence of a criminal defendant's gang membership creates a risk the jury will improperly infer the defendant has a criminal disposition and is therefore guilty of the offense charged"].)

In ruling on Solano's motion to bifurcate, the trial court generally evaluated admission of the gang evidence and properly concluded it was relevant to Solano's motive, providing the jury with one theory as to why Solano might have knowingly—and at great risk to himself— shot at police officers, and not unduly prejudicial. Solano, however, did not specifically object to the admission of evidence about Oscar's conviction as more prejudicial than any of the other gang evidence. The trial court was not required sua sponte to parse and evaluate the specific gang evidence that might be introduced, and Solano has forfeited his argument by failing to specifically and timely object to the evidence. (See People v. Williams (2008) 43 Cal.4th 584, 620 ["`"questions relating to the admissibility of evidence will not be reviewed on appeal in the absence of a specific and timely objection in the trial court on the ground sought to be urged on appeal"'"]; see People v. Gardeley, supra, 14 Cal.4th at p. 624, fn. 11; see generally Evid. Code, § 353, subd. (a) ["[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: [¶] . . . [t]here 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"].)

Even if Solano's counsel had objected, the only issue would be whether it was an abuse of discretion not to exclude this evidence under Evidence Code section 35213 because its probative value was outweighed by its potential for undue prejudice. (See, e.g., People v. Barnett (1998) 17 Cal.4th 1044, 1118 ["[w]hen a trial court overrules a defendant's objections that evidence is . . . unduly prejudicial . . ., we review the rulings for abuse of discretion"]; see generally People v. Ochoa (2001) 26 Cal.4th 398, 437-438 ["[t]he exercise of discretion is not grounds for reversal unless `"the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice"'"].) However, "[t]he prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. `[A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendant's case. The stronger the evidence, the more it is "prejudicial." The "prejudice" referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues.'" (People v. Karis (1988) 46 Cal.3d 612, 638.)

The evidence of Oscar's conviction and the inferences the People argued should be drawn from it—that Solano harbored more animus toward law enforcement than the typical gang member and was committed to the gang life notwithstanding the consequences he witnessed his brother experience—were relevant to the People's theory Solano knowingly shot at police officers and was not, as he claimed, merely trying to defend his home. There was nothing about the evidence that uniquely tended to evoke an emotional bias against Solano; that gang membership is often a family affliction is not startling news. Indeed, also admitted into evidence, without objection other than to gang evidence generally, were pictures on Solano's cellular phone of Oscar Solano's young son making Northside Bolen Parque gang signals. The trial court did not abuse it discretion in permitting evidence of Oscar's gang-related murder conviction.

5. Even If Error, Any References During Trial to the Police Officers as Victims Was Harmless

Solano contends the trial court erred in denying his pretrial motion to prohibit the prosecutor from referring to police officers as "victims" until closing argument. Solano argues characterizing the officers as victims prior to argument is conclusory, argumentative and undermines the presumption of innocence by sending a message to the jury the People's version of events is the correct one.

In People v. Williams (1860) 17 Cal. 142 (Williams), a murder prosecution with a claim of self-defense, the trial court referred to the decedent as a "`victim'" when instructing the jury. (Id. at p. 146.) The Supreme Court cautioned against use of that word: "The word victim, in the connection in which it appears, is an unguarded expression, calculated, though doubtless unintentionally, to create prejudice against the accused. It seems to assume that the deceased was wrongfully killed, when the very issue was as to the character of the killing. We are not disposed to criticise language very closely in order to reverse a judgment of this sort, but it is apparent that in a case of conflicting proofs, even an equivocal expression coming from the Judge, may be fatal to the prisoner. . . . The Court should not, directly or indirectly, assume the guilt of the accused, nor employ equivocal phrases which may leave such an impression. The experience of every lawyer shows the readiness with which a jury frequently catch at intimations of the Court, and the great deference which they pay to the opinions and suggestions of the presiding Judge, especially in a closely balanced case, when they can thus shift the responsibility of a decision of the issue from themselves to the Court." (Id. at p. 147.)

The Williams Court was concerned with the trial court's use of the word "victim." Solano, however, complains about the prosecutor's use of that word. This distinction was recognized as significant in People v. Wolfe (1954) 42 Cal.2d 663 (Wolfe) in which the defendants argued the prosecutor had committed prejudicial misconduct by referring to a defendant's knife as having been left in the "`victim's back.'" (Id. at p. 666.) Relying on Williams, the defendants argued it "assume[d] the guilt of the defendant." (Wolfe, at p. 666.) The Supreme Court distinguished Williams, explaining in Wolfe "the expression did not come from the judge, but from the prosecuting attorney without objection by defense counsel or motion to strike being made, and the jury was instructed that it was the sole judge of the value and effect of the evidence; that it could not convict a defendant upon mere suspicion; that the prosecution was `bound to establish the guilt of a defendant beyond a reasonable doubt, and unless the prosecution does so, then it is your duty to find the defendant not guilty.'" (Wolfe, at p. 666.)

Similarly, in People v. Sanchez (1989) 208 Cal.App.3d 721 (Sanchez), the defendant argued his counsel had rendered ineffective assistance by failing to object to the prosecutor's references to the complaining witness as the "`victim.'" (Id. at p. 739.) The Court of Appeal determined, "The scattered references to `victim' made by the prosecutor, though possibly objectionable, did not deserve defense counsel's interruption of the trial." (Id. at p. 740.)

Unlike in Wolfe and Sanchez Solano objected, by way of a pretrial motion, to any reference by the prosecutor to the police officers as victims. Assuming without deciding the trial court's ruling denying that motion was erroneous, the error was harmless under any standard. (See Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 87 S.Ct. 824] [conviction should be reversed unless People prove error harmless beyond a reasonable doubt]; People v. Watson (1956) 46 Cal.2d 818, 836 [reversal not required unless "it is reasonably probable that a result more favorable to the appealing party would have been reached in absence of the error"].) In his opening brief Solano does not identify any instance of the prosecutor referring to the police officers as victims before closing argument. The People contend there was but one instance during opening statement, but it was qualified by "alleged," a perfectly permissible characterization: "Count 1 is attempted murder. The alleged victim is a person named Shawn Blackburn, who is a police officer . . . ." In his reply brief Solano does not address the People's argument or cite to any other portion of the record where the offending label was used. Under these circumstances it is inconceivable the court's denial of Solano's pretrial motion affected the verdict.

6. The Dismissal of Juror Number 6 for Cause During Deliberations Did Not Violate Solano's Right to Due Process

a. The dismissal of Juror No. 6

After the first full day of deliberations, the bailiff advised the trial court he had found a paperback book in the jury room entitled Prison to Praise.14 Describing the book as having a "generally religious bent," the court, with counsel's agreement, interviewed the jurors to determine whether any of them had brought the book into the jury room, whether they had read or considered its contents and whether religious principles were being utilized to resolve issues in the case.

The court determined Juror No. 6 had brought the book into the jury room. Some jurors reported Juror No. 6 had left copies of the book in the hallway and had individually given them a copy. Although several jurors said there had been no reference to the book, its content or religion during deliberations, the jury foreperson, Juror No. 10, told the court Juror No. 6 had expressed "religious feelings" to which she responded, "we need to separate" that from the deliberations. Juror No. 4 reported Juror No. 6 had made a reference to the defendant "being young and he still can be saved and his salvation."

Juror No. 11 reported the most concern about Juror No. 6, stating, "He was passing [the book] out to people that were sitting around him and talking and preaching about his church" and "everyday he's got it in his pocket." Juror No. 11 stated he had been thinking the previous evening "how I felt that it was inappropriate," so he had asked the jury foreperson that morning whether they should say something to the bailiff.

With respect to whether Juror No. 6 had referred to salvation, redemption or any religious precepts during deliberations, Juror No. 11 responded, "[H]e made one comment in the jury room about . . . the fact that . . . the defendant is young and made bad choices and something to the effect that he hadn't found—maybe hasn't found God yet or something like that and not—didn't specifically, if I recollect . . . didn't specifically use the word `God' . . . but implying God. . . . And the [jury foreperson], she heard it, and she did say . . . we're not supposed to use our religious beliefs or anything else in deciding the facts of this case. . . . And that's why I brought it to her attention this morning, because I felt as though his beliefs are maybe getting in the way of him—." In response to the court's question whether Juror No. 6 appeared to accept the foreperson's admonition to limit discussion of the case to the facts and instructions, Juror No. 11 responded, "No, he was not able to," as demonstrated by "[b]ody language. Things that were said, kind of flip-flopping back and forth . . . just kind of the same implication."

Juror No. 6, whom the court questioned last, explained he had brought copies of the book because the court had said to "bring requested reading" and "I had a whole bunch of them, so I gave it to my friends, you know, the people." Juror No. 6 denied he had "utilize[d] any of the religious tenets or tones in the book or in [his] own religious experience in terms of how to evaluate the evidence or the instructions" and denied he had "discuss[ed] the subject of penalty or punishment or redemption or that sort of thing with the other jurors."

The court found Juror No. 6 had committed misconduct and excused him for cause. The court explained, "Certainly carrying this type of a tome into the jury room and placing it prominently on the table in the jury room—as a matter of credibility, I think Nos. 10 and 11 were both highly credible witnesses—it's clearly misconduct. There's no way of slicing it. And something with a big color print on the front with the word `prison' in it is clearly misconduct." Regarding Juror No. 6's credibility, the court found, "looking at his body language and looking at what he said, he didn't seem real credible at all on any of the things he said, other than, I brought the books in."

b. The court properly exercised its broad discretion to remove Juror No. 6

The trial court may discharge a juror for good cause during deliberations if it finds the juror is unable to perform his or her duty. (See People v. Lomax (2010) 49 Cal.4th 530, 589; People v. Bennett (2009) 45 Cal.4th 577, 621 ["trial court `has broad discretion to investigate and remove a juror in the midst of trial where it finds that, for any reason, the juror is no longer able or qualified to serve'"]; § 1089.)15 Good cause includes a "`juror's unwillingness to engage in the deliberative process'" and "refusal to follow the law set forth in the instructions . . . ." (People v. Alexander (2010) 49 Cal.4th 846, 926.) Additionally, "a juror's serious and [willful] misconduct is good cause to believe that the juror will not be able to perform his or her duty. Misconduct raises a presumption of prejudice [citations], which unless rebutted will nullify the verdict." (People v. Daniels (1991) 52 Cal.3d 815, 864.)

"Although decisions to investigate juror misconduct and to discharge a juror are matters within the trial court's discretion . . . `a somewhat stronger showing' than is typical for abuse of discretion review must be made to support such decisions on appeal. . . . [T]he basis for a juror's disqualification must appear on the record as a `demonstrable reality.' This standard involves `a more comprehensive and less deferential review' than simply determining whether any substantial evidence in the record supports the trial court's decision. [Citation.] It must appear `that the court as trier of fact did rely on evidence that, in light of the entire record, supports its conclusion that bias was established.'" (People v. Lomax, supra, 49 Cal.4th at p. 589.) In applying the demonstrable reality test, the court does not reweigh the evidence. (Ibid.) "The inquiry is whether `the trial court's conclusion is manifestly supported by evidence on which the court actually relied.'" (Id. at p. 590.)

Solano contends the facts reveal only an ambiguous indication that Juror No. 6 was unable to perform his duties and the court did not undertake the "careful questioning" required to ensure Juror No. 6 could not fulfill his responsibilities to deliberate without bias, instead presuming the worst. (See People v. Compton (1971) 6 Cal.3d 55, 60 ["ambiguity in [alternate juror's] remarks was never resolved by proof, and the court was not entitled to do so by presuming the worst"]; People v. Beeler (1995) 9 Cal.4th 953, 975 ["[i]n response to careful questioning by the court, [juror] made clear her belief that she could be impartial and able to serve despite her prior misgivings"].)

To be sure, the trial court asked Juror No. 6 very few questions. Nevertheless, they were key questions. Juror's No. 6's responses revealed, at best, a complete lack of self-awareness of the pervasive nature of his religious views and their impact on the deliberative process. In conflict with the reports by Juror Nos. 10 and 11—jurors the trial court found highly credible—Juror No. 6 essentially denied he had raised issues of a religious nature during deliberations or discussed redemption with the other jurors. Those disingenuous responses, coupled with his distribution of the books to other jurors, strongly support the trial court's conclusion Juror No. 6 could not impartially deliberate whatever assurances he might have given if asked additional questions. The basis for Juror No. 6's disqualification appeared on the record as a "demonstrable reality."

DISPOSITION

The judgment is affirmed.

We concur:

WOODS, J.

JACKSON, J.

FootNotes


1. For simplicity on occasion this opinion uses the shorthand phrase "to benefit a criminal street gang" to refer to crimes that, in the statutory language, are committed "for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members." (Pen. Code, § 186.22, subd. (b)(1); see People v. Jones (2009) 47 Cal.4th 566, 571, fn. 2.) Statutory references are to the Penal Code unless otherwise indicated.
2. In his opening brief on appeal, relying in part on Briceno v. Scribner (9th Cir. 2009) 555 F.3d 1079 and Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099, Solano had also argued there was insufficient evidence to support the criminal street gang enhancements. After the People had filed their respondent's brief, the Supreme Court held in People v. Albillar (2010) 51 Cal.4th 47, 65 that the Garcia and Briceno opinions had incorrectly "construed section 186.22(b)(1) to require evidence that a defendant had the specific intent to further or facilitate other criminal conduct—i.e., `other criminal activity of the gang apart from' the offenses of which the defendant was convicted." In light of Albillar, in his reply brief Solano abandoned his challenge to the sufficiency of the evidence to support the criminal street gang enhancements.
3. Evidence of Solano's membership in the gang included testimony and photographs of gang graffiti in the garage at Solano's home, graffiti tagging by "Sinner," which was the gang moniker used by both Solano and Oscar Solano (the record is unclear whether Solano was "Lil Sinner" or just "Sinner") and a baseball cap recovered from Solano's garage with the initials NSBP (for Northside Bolen Park) that Detective Adams had seen Solano wearing in June 2007.
4. Solano's girlfriend, Renee Miller, testified her mother had offered to help them move to Washington to raise the baby and Solano had agreed to go.
5. On cross-examination Solano testified most of the Northside Bolen Parque gang members have guns.
6. Solano had also moved to bifurcate the criminal street gang allegations before the first trial; that motion was denied.
7. The People had dismissed the criminal street gang allegation relating to the possession-for-sale offense before the retrial.
8. Solano does not dispute multiple firearm-use enhancements were properly imposed for the separate victims of the attempted murder and aggravated assault offenses. (See People v. King (1993) 5 Cal.4th 59, 78 [it is "settled that section 654 does not apply to `crimes of violence against multiple victims'"]; People v. Oates (2004) 32 Cal.4th 1048, 1063-1064.)
9. Section 654, subdivision (a), provides: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other."
10. We review the trial court's order denying a motion to bifurcate for abuse of discretion. (See People v. Hernandez, supra, 33 Cal.4th at p. 1048.)
11. The Supreme Court has recognized that, even if a trial court does not abuse its discretion in denying a motion to bifurcate based upon the showing made at the time of the motion, the admission of criminal street gang evidence may nevertheless result in such gross unfairness that the defendant is deprived of due process of law. (See People v. Mendoza (2000) 24 Cal.4th 130, 163; People v. Burch (2007) 148 Cal.App.4th 862, 867.) However, when the gang evidence is admissible for purposes other than the gang enhancements and fully intertwined with the underlying facts—as it was here—a defendant's ability to satisfy the high burden to demonstrate prejudice is rare. (See People v. Hernandez, supra, 33 Cal.4th at pp. 1049-1050 ["[t]o the extent the evidence supporting the gang enhancement would be admissible at a trial of guilt, any inference of prejudice would be dispelled"].) Based on our review of the record, including the limiting instruction cautioning the jury it could not consider the gang evidence to prove Solano was a person of bad character or had a disposition to commit crimes, Solano cannot meet this high burden.
12. Solano has forfeited the additional arguments Detective Adams's testimony regarding Solano's intent did not meet the requirement for admissibility under People v. Kelly (1976) 17 Cal.3d 24 and Frye v. United States (D.C.Cir. 1923) 293 F. 1013 and was predicated upon inadmissible profile evidence and hearsay. Although Solano had raised these objections in his first motion in limine to bifurcate the gang allegations, he did not renew them in his motion before the retrial or obtain a ruling or stipulation that objections made in the first trial need not be renewed. (See People v. Alfaro (2007) 41 Cal.4th 1277, 1306 ["`[w]hile it may not be necessary to renew an objection already overruled in the same trial [citation], absent a ruling or stipulation that objections and rulings will be deemed renewed and made in a later trial [citation], the failure to object bars consideration of the issue on appeal"].) Indeed, the trial court cautioned Solano's counsel to make any arguments he believed were meritorious even if not successful at the first trial: "The Court of Appeal[] wants you to make appropriate motions just in case, even if you came here, I was dumb enough to forget the ruling that I made the last time. And you need to protect, obviously, Mr. Solano's rights."
13. Evidence Code section 352 provides, "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
14. The book, an autobiography, recounts how Merlin Carothers went from serving in the military to becoming a criminal, to finally finding salvation and redemption in religious teachings. As described on the back cover, "PRISON TO PRAISE is not about a prison with bars, but about a prison of circumstances—and how to be set free!"
15. Section 1089 states in part, "If at any time, whether before or after the final submission of the case to the jury, a juror dies or becomes ill, or upon other good cause shown to the court is found to be unable to perform his or her duty, or if a juror requests a discharge and good cause appears therefor, the court may order the juror to be discharged and draw the name of an alternate, who shall then take a place in the jury box, and be subject to the same rules and regulations as though the alternate juror had been selected as one of the original jurors."

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