Filed 10/26/15 P. v. Guillory CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D066228

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD243864)

JEMERE GUILLORY,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, David M.

Gill, Judge. Affirmed.



         Anthony J. Dain, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Barry Carlton and James H.

Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
       A jury found defendant and appellant Jemere Guillory guilty of the lesser included

offense1 of simple mayhem (Pen. Code, § 203; count 1); assault with a firearm (Pen.

Code, § 245, subd. (a)(2); count 2); possession of a firearm by a felon (Pen. Code,

§ 29800, subd. (a)(1); counts 3 & 4); possession of cocaine base for sale (Health & Saf.

Code, § 11351.5; count 5); receiving or acquiring proceeds over $25,000 known to be

derived from the unlawful sale of controlled substances (Health & Saf. Code, § 11370.9,

subd. (a); count 6); possession for sale of a controlled substance (Oxycodone) (Health &

Saf. Code, § 11351; count 7); possession for sale of a controlled substance

(methamphetamine) (Health & Saf. Code, § 11378; count 8); and possession for sale of a

controlled substance (Diazepam) (Health & Saf. Code, § 11375, subd. (b)(1); count 10).

       As to count 1, the jury made a true finding that defendant personally used a

firearm (i.e., a handgun) (Pen. Code, § 12022.5, subds. (a) & (b)), personally discharged

a firearm (Pen. Code, § 12022.53, subd. (c)) and personally discharged a firearm causing

great bodily injury (Pen. Code, § 12022.53, subd. (d)). As to count 2, the jury found true

defendant personally used a firearm (Pen. Code, § 12022.5, subd. (a)) and personally

inflicted great bodily harm on the victim (Pen. Code, § 12022.7, subd. (a)). As to all of

the offenses for possession of drugs for sale, the jury found true defendant committed the

crimes for the benefit of, or in association with, a criminal street gang (Pen. Code,

§ 186.22, subd. (b)(1)). As to count 5, possession of cocaine base for sale, the jury found



1     The jury found defendant not guilty of aggravated mayhem (Pen. Code, § 205) and
attempted aggravated mayhem (Id., §§ 205 & 664).

                                             2
true defendant possessed a quantity greater than one kilogram in weight (Health & Saf.

Code, § 11370.4, subd. (a)(1)).

       Defendant subsequently admitted suffering a qualifying prior narcotics conviction

(Health & Saf. Code, § 11370.4, subds. (a), (b) & (c)) and two prison priors (Pen. Code,

§ 667.5, subd. (b)).2 The court sentenced defendant to 25 years to life, plus 29 years

eight months in state prison.

                                  FACTUAL OVERVIEW

       Prosecution Evidence

       In late May 2012, a shooting occurred around 9:30 p.m. outside a market located

in Southeast San Diego. Video from surveillance cameras located both inside and outside

the market showed a man, later identified as defendant, and a female, later identified as

defendant's girlfriend Kitsana Xaypanya, inside the market arguing with a man, later

identified as victim James Muhammed, shortly before the shooting. Next, the video

showed the victim, defendant and Xaypanya leaving the market, a "flash of light" in the

darkness shortly thereafter and people in the market's parking lot "duck[ing] down" as if

they were "startled" by a noise. After numerous failed attempts to obtain a copy of the

video, police took "still pictures" from the video of the victim, defendant and Xaypanya.

       Xaypanya, who was given a grant of immunity, testified a man later identified as

the victim touched her "booty" inside the market and said, " 'Hey, yo mama.' " In

response, Xaypanya and defendant began to argue with the man. Xaypanya said the man



2      Unless otherwise noted, all further statutory references are to the Penal Code.
                                             3
followed them outside and across a street. Although she was at the scene of the shooting

and heard at least one gunshot, Xaypanya told the jury she (allegedly) did not see the

shooter.

       San Diego Police Detective Daniel Brinkerhoff testified he interviewed the victim

a few days after the shooting. The victim at that time was relatively cooperative. The

victim told Brinkerhoff he argued inside a market with an African-American male, later

identified by others as defendant, and a Samoan female, later identified as Xaypanya.

The victim admitted he disrespected the female but told the detective he apologized. Still

upset, the African-American male asked the victim to step outside. The victim believed

they were going to fight. The victim followed the two across the street. The African-

American male, however, turned and faced the victim, pulled out a gun and shot the

victim in the thigh. The victim told the detective he could identify the shooter but did not

then do so, stating he was unsure whether he wanted the case prosecuted.

       Witness Rommel Pacho testified at the time of the shooting he lived near the

market. Around 9:30 p.m. on the night of the shooting, as he was leaving his home,

Pacho heard loud voices and what appeared to be an argument across the street, near the

market. Pacho saw a couple being followed by another man. They were talking back and

forth. Shortly after they walked past Pacho, he heard a single gunshot but did not see the

actual shooting. A man turned toward Pacho, yelled he had been shot and asked Pacho to

call 911. The man told Pacho he had been shot by the other man, who was with a girl

Pacho described as "Asian" looking.



                                             4
       Witness Guilford Hawkins testified he was at a grocery store adjacent to the

market on the night of the shooting. Hawkins saw two males and one female arguing

outside the market. Hawkins later identified Xaypanya as the female from a

photographic lineup. He stopped to see what was going on and heard an Asian female

telling a man more than once, " 'Keep it up, um, we'll see what happens,' " as the man

continued to talk to the female. The man with the female, whom Hawkins described as

the shooter, kept telling the female, " 'Let's go. Let's go,' " but the female continued to

argue with the man, who was following behind the couple.

       As the man followed the couple across the street, Hawkins saw the man with the

female turn around, raise a gun and saw the "muzzle flash from the gun." Hawkins next

saw the man who had been following the couple "hop away." Hawkins heard the female

tell the man, " 'See? I told you. I told you.' " Hawkins next heard the shooter say to his

female companion, " 'Let's go' " and saw the couple walk "casually away." Hawkins

called 911. Hawkins testified the shooter was wearing red basketball shorts and a black

fleece jacket with gray stripes that looked similar to the clothes later recovered from

defendant's home.

       Witness Trazel Metters testified on the night of the shooting he was working as a

security guard in an apartment complex near the market. Around 9:30 p.m., Metters

heard a gunshot. About three to five minutes later, Metters saw a male and female walk

past him. A few weeks after the shooting, a police officer showed Metters a photograph,

and Metters identified the man in the photograph as the same man he had seen walking

past him with the female shortly after the shooting.

                                              5
       Using still images from the market's surveillance video, the police created a flier

of the suspect in the shooting. A member of the police's gang task force subsequently

recognized the suspect in the flyer as defendant. Police arrested defendant during a

traffic stop. Police found a house key on defendant's car key ring.

       As discussed in more detail post, before obtaining a search warrant the police went

to defendant's mother's home, where they believed defendant lived, and conducted a

preliminary search to secure it pending issuance of a warrant. After the warrant issued

later that night, police searched the home and found in an upstairs bedroom paperwork

belonging to defendant. In that bedroom, the police also found among other items a .40-

caliber handgun and magazine with eight rounds inside; long red shorts, a black jacket

with gray stripes and shoes, all of which were similar to those worn by the suspect as

seen on the surveillance video; photos of defendant; two digital scales with off-white

residue on them, along with two razors; a locked safe; a box of plastic baggies; jail mail

from Xaypanya addressed to defendant; and two Pyrex glass cooking dishes, both with

off-white residue on them.

       In a downstairs closet, police found a .45-caliber semiautomatic handgun with

three extended magazines for the gun, two of which were loaded; a 12-gauge shotgun

inside a brown case; a 700 rifle with a scope and tripod and 10 rounds of ammunition

inside a case; a 20/06 rifle with a scope in a black soft case; one box of nine-millimeter

ammunition; and four other boxes of ammunition.

       After an additional search warrant issued, police opened the safe and inside they

found a .32-caliber revolver along with six rounds of ammunition; an ExtenZe package

                                             6
with four tablets missing; a full unopened package of ExtenZe; 92 five-milligram

Oxycodone tablets; 100 Oxycodone tablets; a counterfeit $20 bill; two credit cards

belonging to a third party; 9.46 grams of methamphetamine; almost four pounds of

cocaine base; and about $28,500 in cash, separated in small stacks and bundled with

black rubber bands.

          Several days later, police again searched defendant's home pursuant to a search

warrant. In this subsequent search, they found defendant's California identification card

in a downstairs closet. In an upstairs bedroom, police found 18 boxes of sandwich

baggies; four bags of black rubber bands similar to the rubber bands used to bundle the

cash police already had found; razor blades, including one with cocaine residue; two

scales; a pocket scale with cocaine residue on it; and a 100-gram weight to calibrate the

scales.

          Defendant's fingerprints were later found to be on the package of ExtenZe tablets

recovered from the safe. DNA recovered from the surface of the .45-caliber

semiautomatic handgun found in the downstairs closet matched defendant.

          San Diego Police Detective Juan Cisneros, a narcotics expert, testified that the

amount of cocaine base recovered from the safe in the upstairs bedroom would be worth

about $70,000 if sold by the pound and would be worth more if sold in smaller quantities.

In light of the scales, razor blades, sandwich baggies, the cash, and baking dishes, some

of which items contained cocaine residue, and in light of the amount of cocaine base and

other drugs recovered from the safe, Cisneros opined that a person in possession of such

items did so for the purpose of sale.

                                                7
       San Diego Police Detective David Collins, a gang expert, testified he is familiar

with the 5/9 Brims street gang. In October 2012, Collins opined that there were about

200 documented members of that gang; that their territory included parts of Southeast

San Diego; that members of the gang often had a 5-9 or O-V tattoo; that gang members

of 5/9 Brims celebrate May 9 (i.e., 5/9) as a holiday and throw a big party within the

gang's territory; and that the 5/9 Brims' main rival was the Neighborhood Crips gang and

to a lesser extent, the West Coast Crips.

       Based on his own investigation, the investigation and police reports of others and

the execution of search warrants on some of the gang members' homes, Collins opined

that 5/9 Brims qualified as a criminal street gang under the law because the gang had a

common sign, symbol or place; members that commonly or continually associated; and

the gang's primary activities included murder, robbery, weapons, assaults, narcotics and

narcotics for sale. Collins reviewed specific instances of gang activity to show that

members of 5/9 Brims engaged in a pattern of criminal activity as defined under the law.

       Collins opined that defendant at all times relevant was an active member of the 5/9

Brims gang. Collins based his opinion on many factors including that defendant went by

the moniker " 'J Hog' "; that defendant had a large "pig" or "wild boar" tattooed on his

back; and that defendant previously admitted to police he was a member of 5/9 Brims and

also was known to associate with other members of that gang. Collins further opined that

a 5/9 Brims gang member in possession of the weapons and drugs like those found in

defendant's mother's home would possess such items for the benefit of the gang, with the



                                             8
specific intent to promote, further or assist in criminal activities by the gang and/or its

members.

       Defense Evidence

       Defendant testified in his own defense. He admitted to being a member of 5/9

Brims. He stated Brims stood for "Black Revolutionary Independent Movement

Soldier." Defendant acknowledged he confronted the man later identified as the victim

inside the market after the victim inappropriately touched his then girlfriend, Xaypanya.

Defendant previously had seen the victim in the neighborhood. Defendant encouraged

Xaypanya to stop arguing with the victim and to leave the store. Defendant also told the

victim he should apologize to Xaypanya. After defendant and Xaypanya left the store,

the victim followed behind them and according to defendant, continued to be

confrontational with Xaypanya.

       Defendant testified he asked the victim to leave them alone. Instead, the victim

made threatening remarks as he was following behind defendant and Xaypanya, saying,

" 'I'm going to show you something. I've got something.' " Defendant next saw the

victim reach under his shirt as he continued to make such threats. Because defendant

believed that the victim was reaching for a weapon, defendant testified he and Xaypanya

began running. Shortly thereafter, defendant heard a gunshot and realized the victim had

been hit.

       Defendant denied carrying a gun on the night of the shooting and also denied then

owning a gun. Defendant testified that neither the guns nor drugs found by police in his

mother's home belonged to him. He also testified that he did not live with his mother.

                                               9
       On cross-examination, defendant denied having a key to his mother's home on his

car key ring when he was arrested. Defendant said the key to his mother's house was

"added" to the ring postarrest.

                                         DISCUSSION

       A. Right to a Public Trial

       1. Additional Background

       Before a jury was empanelled in this case, the record shows the following

exchange took place between defense counsel and the court concerning defendant's

family members and their attendance in the courtroom:

       "[Defense counsel]: Your Honor, just so you know, too, your bailiff has been so --

so kind to allow family members of my client to come in previously. I'm going to hope

that there will be no future issue at all.

       "THE COURT: Well . . . first of all, during the jury selection, we're just not going

to have room for them because the court is going to be full of prospective jurors. But

once -- certainly once we get the jury selected, they'll be free to be here. As long as -- I

think the bailiff did have a little -- had to talk a little bit with one of the family members

the other day. But I think hopefully that was effective and that won't be -- won't be a

problem. [¶] But, no, same rule. As long as they follow the rules and don't cause any

problem, they're welcome to be here. I say, not during the jury selection because we just

don't have room for them."

       The record shows at 11:34 a.m., 60 potential jurors entered the courtroom. After

being admonished, the jurors were excused at 12:01 p.m. At 1:34 p.m., the court

                                              10
reconvened, read the charging portion of the information and pre-instructed the

prospective jurors in the law applicable to this case. Voir dire then began until 3:00 p.m.,

when the court was again in recess. The court reconvened at 3:17 p.m. and voir dire

continued until 4:08 p.m., when the prospective jurors were admonished and excused for

the day.

       The record shows the following day voir dire did not resume until 9:59 a.m. At

10:59 a.m., the prospective jurors were excused while the court conducted individual voir

dire of three prospective jurors. At 11:11 a.m., upon the court's inquiry, the bailiff

informed the court and counsel of a "disruption in the audience." The record does not

explain the nature of the disruption. However, when the court reconvened at 11:27 a.m.,

it admonished the prospective jurors not to speak with anyone, stating as follows:

       "Continue to abide by the admonitions not to talk to anyone else under any

circumstances; allow anyone to talk to you about the case itself; not to seek any

information from any outside sources, electronic, social media, written sources; talking to

anybody, whatever those sources might be about any matter related to the case; and,

maintain your distance.

       "There are some folks here who have an interest in the case. And they have a

right to be here in or about the courtroom. But I think you recognize who they are. And

don't have any contact with them. Don't let them have any contact with you. I'm not

suggesting they [don't] have a right to be here and they haven't done anything improper.

But just to maintain some distance from them so you don't inadvertently overhear what



                                             11
they might be discussing which may have something to do with the case or [defendant]

but won't be any part of the evidence upon which you have to base your finding.

       "So think about serving as a juror. Think about what we're talking about here.

But keep those thoughts to yourselves."

       The record shows that the prospective jurors were admonished and excused at

11:45 a.m.; that the court ruled on two motions and went into recess at 12:04 p.m.; that

the court reconvened at 1:38 p.m.; and that a jury was selected by 3:04 p.m.

       2. Governing Law and Analysis

       A criminal defendant has a constitutional right to "a trial which is open to the

general public at all times." (People v. Woodward (1992) 4 Cal.4th 376, 382

(Woodward).) The public, too, has a right to an open trial. (People v. Esquibel (2008)

166 Cal.App.4th 539, 552.) Openness "enhances both the basic fairness of the criminal

trial and the appearance of fairness so essential to public confidence in the system."

(Press–Enterprise Co. v. Superior Court of Cal. (1984) 464 U.S. 501, 508.) A public

trial helps keep the court and the triers of fact " 'keenly alive to a sense of their

responsibility and to the importance of their functions' " and may also discourage

witnesses from committing perjury. (Woodward, at p. 385.) The public trial right applies

not only to the trial itself, but also to many other court proceedings including, as relevant

here, voir dire. (See Presley v. Georgia (2010) 558 U.S. 209, 213.)

       The record is silent regarding whether defendant's family members were in fact

excluded from the courtroom during any part of voir dire. The record suggests that at

least with respect to the second day of voir dire, there were people with an "interest" in

                                               12
the case present in the courtroom. However, it is not clear whether these "interest[ed]"

people were defendant's family members.

       Moreover, the record also is silent regarding whether there was room for any or all

of defendant's family members when the 60 prospective jurors initially entered the

courtroom and voir dire first began, or the following day as voir dire continued, when

prospective jurors were excused throughout the day and when a jury was seated at 3:04

p.m. We note that if defendant's family members were excluded from the courtroom for a

short period of time in order to make room for prospective jurors but subsequently were

able to reenter—perhaps after a recess, then defendant's right to a public trial under those

circumstances may not have been violated. (See People v. Bui (2010) 183 Cal.App.4th

675, 680 [holding the temporary exclusion of three individuals for about 40 minutes,

"during only a small part of the voir dire of prospective jurors, and not during the

evidentiary phase of the trial," was de minimis and thus did not violate a defendant's

public trial right]; see also Owens v. United States. (1st Cir. 2007) 483 F.3d 48, 62, 66

[concluding the court erred in not holding an evidentiary hearing on the defendant's claim

he was denied a right to a public trial when two of his family members submitted

affidavits stating they were prohibited from entering the courtroom during voir dire, after

the record showed the courtroom was cleared of all spectators to accommodate 72

prospective jurors, and further concluding the absence of any findings made it impossible

to discern whether it was necessary for the courtroom to be cleared to permit the entire

jury pool to enter and/or whether members of the public, including the defendant's family



                                             13
members, were allowed to reenter the courtroom as seats opened up once potential jurors

were excused].)

       Given the lack of any evidence in the record to support defendant's contention that

his family members were actually excluded from the courtroom during voir dire or that

their exclusion was not de minimis, on this record we reject defendant's contention he

was deprived of the right to a public trial by the alleged exclusion of his family members

from the courtroom.3

       B. Motion to Suppress

       1. Additional Background

       As noted, after defendant was arrested in mid-October 2012 police went to the

home of defendant's mother, where they believed defendant lived and where they had just

seen defendant leave shortly before his arrest. Police used a key found on defendant's

key ring to open the home and conduct a "security sweep." Police sought and obtained

later that night a search warrant of the home.

       At the hearing on the motion, the court found that even if the security sweep was

not justified, the subsequently obtained search warrant was valid because the probable

cause finding to support its issuance "arose from a video as well as subsequent

investigations that took place as well as the watching, based on surveillance, of

[defendant] leave this house . . . ."   In denying the motion to suppress, the court noted


3       Given our decision, we deem it unnecessary to resolve the People's alternate
contention that defendant forfeited his right to challenge this issue because he acquiesced
in the court's suggestion that his family members allegedly be excluded from the
courtroom to make room for the 60 prospective jurors.
                                               14
there was a reference in the affidavit to men's clothing and to 5/9 Brims based on color,

but the court found this reference was not material on the issue of probable cause.

       The court also noted that the items they would be searching for included items that

may have been identified during the initial security sweep, including guns and

ammunition. The court, however, found that all such items were "consistent with the

grounds for the probable cause based on the shooting and the video that occurred prior to

the illegal search." The court thus found that even if the initial security sweep of the

home was illegal, the evidence used in support of the affidavit to obtain the search

warrant was obtained independently, namely from the market surveillance video and

from the police's subsequent investigation of the shooting.

       2. Governing Law and Analysis

       Here, defendant contends that absent the fruit of the alleged unlawful security

sweep of his mother's home, the affidavit is insufficient to support a finding of probable

cause to justify issuing the search warrant. The People agree with defendant that the

affidavit contains information both obtained by the alleged illegal security sweep as well

as untainted information. Both parties also agree the "independent source rule" applies

here and requires a two-prong test, but they disagree on the outcome of that test.

       "It has long been established that even if a criminal investigation involved some

illegal conduct, courts will admit evidence derived from an 'independent source.' "

(People v. Weiss (1999) 20 Cal.4th 1073, 1077 (Weiss), quoting Silverthorne Lumber Co.

v. United States (1920) 251 U.S. 385, 392.) "In a case involving the inevitable discovery

rule, a close relative of the independent source doctrine, the United States Supreme Court

                                             15
explained the basis for admitting evidence derived from a source independent of illegal

conduct. 'The core rationale consistently advanced by this Court for extending the

exclusionary rule to evidence that is the fruit of unlawful police conduct has been that

this admittedly drastic and socially costly course is needed to deter police from violations

of constitutional and statutory protections. This Court has accepted the argument that the

way to ensure such protections is to exclude evidence seized as a result of such violations

notwithstanding the high social cost of letting persons obviously guilty go unpunished for

their crimes. On this rationale, the prosecution is not to be put in a better position than it

would have been in if no illegality had transpired.

        " 'By contrast, the derivative evidence analysis ensures that the prosecution is not

put in a worse position simply because of some earlier police error or misconduct. The

independent source doctrine allows admission of evidence that has been discovered by

means wholly independent of any constitutional violation . . . . The independent source

doctrine teaches us that the interest of society in deterring unlawful police conduct and

the public interest in having juries receive all probative evidence of a crime are properly

balanced by putting the police in the same, not a worse, position that they would have

been in if no police error or misconduct had occurred. [Citations.] When the challenged

evidence has an independent source, exclusion of such evidence would put the police in a

worse position than they would have been in absent any error or violation.' " (Weiss,

supra, 20 Cal.4th at pp. 1077-1078, quoting Nix v. Williams (1984) 467 U.S. 431, 442-

443.)



                                              16
        Where the affidavit supporting a search warrant contains both information

obtained by alleged unlawful conduct as well as untainted information, as noted a two-

prong test applies to justify application of the independent source doctrine. (Weiss,

supra, 20 Cal.4th at pp. 1078, 1082.) First, the affidavit, excised of any illegally obtained

information, must be sufficient to establish probable cause. (Id. at p. 1082.) Second, the

evidence must support a finding that "the police subjectively would have sought the

warrant even without the illegal conduct." (Id. at p. 1079; see id. at p. 1082 [" 'if the

application contains probable cause apart from the improper information, then the

warrant is lawful and the independent source doctrine applies, provided that the officers

were not prompted to obtain the warrant by what they observed during the initial

entry' "].)

        Finally, the "standard of appellate review of a trial court's ruling on a motion to

suppress is well established. We defer to the trial court's factual findings, express or

implied, where supported by substantial evidence. In determining whether, on the facts

so found, the search or seizure was reasonable under the Fourth Amendment, we exercise

our independent judgment." (People v. Glaser (1995) 11 Cal.4th 354, 362.)

        Turning to the first prong, the affiant, Detective Collins, detailed the investigation

the police had conducted of the shooting of the victim. Collins noted that witnesses in

the area reported the victim, who was known by the officer who initially responded to the

incident, "was shot by an unknown black male. Officer Schmidt [i.e., the responding

officer] examined [the victim's] injuries and saw only one gunshot wound to the leg.

Paramedics arrived on scene, transported him to [the hospital] for treatment, and while at

                                              17
the hospital, Officer Schmidt documented [the victim's] injuries. A subsequent follow-up

ultimately led to Detective Brinkerhoff . . . collecting video surveillance at [the market].

That information was originally relayed in Officer Ketcham['s] . . . report. The victim

was inside the store when he was confronted by an unknown black male who was

ultimately identified as [defendant]. [Defendant was] inside of the store with his long

term girlfriend which will be Kitsana Xaypanya . . . . The two of them were inside of the

store. Kitsana believed that she is disrespected by the victim . . . . [Defendant] steps in,

they get into a verbal argument . . . the exchange actually leads to them leaving the store.

As they leave the store, the victim believes that the -- they're going outside simply for a

physical altercation. They walk out of the front of the store. The scene on the video is

they walk out. Just as they get out of the area where the camera lighting picks up,

Detective Brinkerhoff noticed that there was one flash that he believes to be the gunshot.

From that point, the victim -- or the suspects continued westbound which is actually back

in the direction of the house that we wish to -- wish to search and . . . the victim was

contacted and transported to the hospital."

        Collins also stated in support of the affidavit that defendant lived about a half mile

from the location of the shooting and that police wanted to conduct the search then, late

at night, because defendant was a known member of the 5/9 Brims gang and thus could

arrange to have other gang members and/or their families remove any evidence from the

home.

        The record shows Collins stated in support of the affidavit that the home had been

secured and that two uniformed officers were currently at the residence. The judge next

                                              18
asked who lived there at the residence and whether there were any children in the

residence. In response, Collins stated, "No. We . . . on the cursory, when we cleared the

-- when we actually cleared the residence, it's only a two-bedroom and one bedroom

appeared to be what would be the mother's room . . . . And the room that was just to the

north of that . . . it appeared to just be -- uh -- men's clothing -- as well as several

different pairs of -- uh -- men's type tennis shoes and actually -- uh -- a lot of red and

black which would be consistent with 59 Brim. That clothing was just stacked out -- I'm

sorry, the shoes were stacked out on the floor."

       Even if the affidavit's reference to 5/9 Brims gang colors in connection with shoes

and/or clothes was the result of the police's alleged unlawful security sweep of the home,

as defendant contends, we independently conclude that the search warrant was supported

by other lawfully-obtained information to establish probable cause. (See People v. Little

(2012) 206 Cal.App.4th 1364, 1371-1372 [noting that to "determine the existence of

probable cause, [a court] consider[s] whether under the totality of the circumstances,

'there is a fair probability that contraband or evidence of a crime will be found in a

particular place' "].)

       Here, Collins in connection with the affidavit stated that the African-American

male in the market's surveillance video was identified as defendant; that defendant and

his long-time girlfriend got into an argument with the victim when the victim touched

defendant's girlfriend inappropriately; that the argument continued as they left the market

and headed outside; that shortly thereafter the surveillance video showed a flash of light,

indicative of a gunshot; that the victim was shot once in the leg, which was consistent

                                               19
with witness testimony; and that the home they wanted to search was defendant's

mother's and was located about a half mile from the location of the shooting. In addition,

the police investigation of the shooting included witnesses who identified the shooter as

being African-American. We independently conclude this information, obtained from a

lawful independent source, is sufficient to support probable cause for the warrant.

       As to the second prong, the record supports a finding that the police would have

sought a warrant even without the alleged unlawful security sweep. (See Weiss, supra,

20 Cal.4th at pp. 1079, 1082.) The record shows the security sweep took place shortly

after defendant was arrested and was conducted in order to secure the home of

defendant's mother where the police believed defendant was then living. Moreover, the

police had conducted surveillance of the home and witnessed defendant leaving the home

in a car shortly before he was contacted and arrested.

       What's more, the record shows when the police applied for a search warrant late

on the same night of defendant's arrest, the police had two uniformed officers at the home

securing it pending the issuance of the search warrant. Thus, we independently conclude

there is sufficient evidence in the record to support the finding that police would have

sought the warrant even if they had not done the security sweep. We therefore

independently conclude the court properly denied defendant's motion to suppress

evidence.

       C. Sufficiency of the Evidence for Simple Mayhem Conviction

       Defendant next contends the evidence is insufficient to support his mayhem

conviction under section 203. This statute provides: "Every person who unlawfully and

                                            20
maliciously deprives a human being of a member of his body, or disables, disfigures, or

renders it useless, or cuts or disables the tongue, or puts out an eye, or slits the nose, ear,

or lip, is guilty of mayhem."

       The record shows that with respect to the lesser-included offense of mayhem, the

jury was instructed in part as follows with CALCRIM No. 801: "To prove that the

defendant is guilty of mayhem, the People must prove that the defendant unlawfully and

maliciously: [¶] 1. [p]ermanently disfigured someone. [¶] Someone acts maliciously

when he or she intentionally does a wrongful act or when he or she acts with the unlawful

intent to annoy or injure someone else. [¶] A disfiguring injury may be permanent even

if it can be repaired by medical procedures."

       Defendant contends the single gunshot wound to the victim's thigh was

insufficient to show a permanent disfiguring injury as required by section 203.

       For simple mayhem (as well as for aggravated mayhem), the disability or

disfigurement must be "permanent." (People v. Hill (1994) 23 Cal.App.4th 1566, 1571

(Hill).) Permanence may be inferred from an injury's long duration. (See, e.g., People v.

Thomas (1979) 96 Cal.App.3d 507, 512 [concluding a broken ankle causing disability

lasting over six months was sufficient to support charge of mayhem], overruled on other

grounds as stated in People v. Kimble (1988) 44 Cal.3d 480, 498.) The possibility of

medical alleviation of an injury that would otherwise be permanent does not defeat a

mayhem conviction. (Hill, supra, 23 Cal.App.4th at pp. 1572-1573.)

       Here, the record includes various stipulations of the parties regarding the victim's

injury: the victim "was shot on his right thigh and had a 0.5 centimeter entry wound on

                                               21
the front of his thigh and [a] 0.5 centimeter exit wound on the back of his thigh"; "[t]here

was a small collection of blood around the wound on the front of his right thigh"; "[t]here

was no gross deformity"; the victim "had some chronic apparent swelling of the right

medial ankle with a healed incision there"; and while still in the hospital recovering from

his wounds, the victim "got up to go to the restroom and large amounts of blood seeped

out of the wound on the back of his thigh." The record also shows when asked about his

leg, the victim testified that it was "not doing well" and that he had "17 screws put into

[his] leg."

       Although we recognize that " 'not every visible scarring wound' may establish

mayhem under section 203" (People v. Santana (2013) 56 Cal.4th 999, 1004), the

evidence in the record before us supports the finding the victim's injury was permanent.

Indeed, at the time of trial when the victim testified his leg was not doing well, it had

been almost two years since the shooting. In addition, the victim had scarring on his

thigh from the entry and exit of the bullet. (See People v. Keenan (1991) 227 Cal.App.3d

26, 35-36 [noting scars on a woman's breast caused by cigarette burns constituted

permanent disfigurement even though the scars were located on a typically unexposed

portion of her body].) We thus conclude this evidence is sufficient to support the finding

that defendant was permanently disfigured for purposes of his mayhem conviction.

       D. Lesser-Included Instruction of Simple Possession

       Finally, defendant contends the court erred when it failed to give sua sponte an

instruction on simple possession as a lesser-included offense of possession for sale.



                                             22
       It is beyond dispute that a trial court must instruct the jury on all general principles

of law relevant to the issues raised by the evidence, including lesser included offenses,

whether or not the defendant makes a formal request. Instruction on a lesser included

offense is required when there is evidence that indicates the defendant is guilty of the

lesser offense but not of the greater. (People v. Banks (2014) 59 Cal.4th 1113, 1159.)

Substantial evidence is evidence that a reasonable jury could find persuasive. (People v.

Benavides (2005) 35 Cal.4th 69, 102 (Benavides).) The existence of any evidence, no

matter how weak, will not justify instructions on a lesser included offense. (People v.

Whalen (2013) 56 Cal.4th 1, 68.) In deciding whether there is substantial evidence we do

not evaluate the credibility of the witnesses, a task for the jury. (People v. Wyatt (2012)

55 Cal.4th 694, 698.) We independently review the question of whether the trial court

erred by failing to instruct on a lesser included offense. (People v. Booker (2011) 51

Cal.4th 141, 181.)

       Simple possession of a controlled substance is a lesser included offense of

possession of the same substance for sale. (See People v. Becker (2010) 183 Cal.App.4th

1151, 1157; People v. Oldham (2000) 81 Cal.App.4th 1, 16.) Therefore, if there was

substantial evidence to show defendant was guilty of simple possession of Oxycodone,

methamphetamine and Diazepam in counts 7, 8 and 10, respectively, but not possession




                                              23
for sale, the court should have sua sponte instructed on the lesser offense of simple

possession.4

       Here, we independently conclude the court did not err in failing to instruct sua

sponte the jury on the lesser included offense of simple possession in connection with

counts 7, 8 and 10 because there was no substantial evidence in the record that a

reasonable jury could find persuasive that defendant possessed these drugs for personal

use. (See Benavides, supra, 35 Cal.4th at p. 102.) Indeed, the record shows defendant

denied the safe, or the drugs found inside of it, belonged to him, and specifically denied

taking Oxycodone. Thus, defendant's sole defense was the drugs (in connection with

counts 7, 8 and 10) were not in his possession, much less for purposes of sale. If the jury

believed defendant, they would have acquitted him of these charges, as opposed to

merely finding him guilty of simple possession.

       Moreover, our conclusion is further supported by the large amount of cocaine

base, and the $28,500 of cash carefully bundled in black rubber bands, that were also

found in the safe, and by the other drug paraphernalia police found inside the safe and

bedroom including two digital scales with off-white residue on them, razors and multiple

boxes of plastic baggies among other items. Such evidence does not support a finding




4       Defendant wisely does not contend the court erred in failing to instruct on the
lesser included offense of simple possession in connection with his conviction on count 5
of possession for sale of cocaine base, in light of the fact he had roughly 3.7 pounds of
the drug and in light of the fact the police found scales, razor blades and other drug
paraphernalia with cocaine residue that is typically used in connection with drug sales.
                                            24
defendant possessed the drugs in connection with counts 7, 8 and 10 merely for personal

use.

                                    DISPOSITION

       The judgment of conviction is affirmed.




                                                                             BENKE, J.

WE CONCUR:


McCONNELL, P. J.


NARES, J.




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