Filed 10/25/13 P. v. Joyner CA3
                                           NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----



THE PEOPLE,                                                                                  C071202

                   Plaintiff and Respondent,                                     (Super. Ct. No. 09F07948)

         v.

SEAN JOYNER,

                   Defendant and Appellant.




         Around 2 a.m. on October 23, 2009, victim David Blanks was fatally shot six
times in a nightclub parking lot. The circumstances of the shooting were these: As
Blanks was leaving the nightclub, someone asked him, “[W]hat‟s up Blood?” Blanks
replied, “[W]hat‟s up „cuz?” “Blood” was a reference to the Blood criminal street gang
and “cuz” was a reference to the rival Crip criminal street gang. One Nicholas Newsome
started “mugging” (making mean faces at) Blanks. Newsome was an Oak Park Blood.
Someone asked Blanks where he was from, to which he responded, “29th Street,” as
Blanks was an affiliate of the 29th Street Crip gang. Others, including Newsome and


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defendant Sean Joyner, yelled out, “nigga, this is Oak Park.” Defendant was also an Oak
Park Blood. Blanks turned around, and someone repeatedly shot him.
       The day after the shooting, defendant texted Damanique McCoy, the mother of his
three-year-old son, the following: “[B]abe, please. This is real serious. I fucked up. I
think it‟s over, babe. On God, on my son, I didn‟t mean to do it.” She responded,
“[W]hat‟s over?” Defendant texted, “Babe, I fucked up. But on God I didn‟t mean to do
it.” During a conversation McCoy had with a police detective, she told the detective that
defendant told her, “some guy got shot at [the nightclub],” “it was an accident,” and he
(defendant) was there. When she asked if he was the shooter, he would not tell her and
said he did not want to talk about it.1
       Defendant and Newsome were both tried together in front of a jury for first degree
murder with enhancements that at least one principal personally discharged a firearm and
the murder was committed for the benefit of the Oak Park Bloods.2
       A jury found defendant (and Newsome) guilty of second degree murder and, as to
defendant, found true the murder was committed for the benefit of the Oak Park Bloods




1      McCoy had the conversation with defendant while they were both at the police
station. The only reason McCoy went to the police station is because the police lied to
her and told her defendant wanted to speak to her.
2      In closing, the People argued Newsome was the shooter and defendant was the
aider and abettor, based on at least one witness identifying Newsome as the shooter.
There was also evidentiary support for an argument that defendant was the shooter.
According to the trial testimony of at least one witness, there was a man with an
outstretched hand from which flashes emanated just before the witness heard shots being
fired and that man was dark skinned (defendant was dark skinned at the time of the
shooting and Newsome was light skinned). The jury specifically found not true an
allegation that Newsome personally discharged the firearm.

       Although Newsome appealed his conviction to this court, his appeal was
ultimately dismissed.

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and that at least one principal personally discharged a firearm. The trial court sentenced
defendant to 40 years to life in prison.
       Defendant appeals, raising five contentions dealing with the evidence, bifurcation,
severance, and counsel‟s performance. We affirm.
                                       DISCUSSION
                                               I
                There Was Sufficient Evidence Of The Gang Enhancement
       Defendant contends there was insufficient evidence of the gang enhancement. He
argues the record is “complete[ly] lack[ing] of any evidence that the shooting was gang
related or gang motivated, or that [defendant‟s] conduct was in any way gang-related.”
Not so.
       We begin with the words of the gang enhancement, which applies an increased
term of incarceration to: “[A]ny person who is convicted of a felony committed for the
benefit of, at the direction of, or in association with any criminal street gang, with the
specific intent to promote, further, or assist in any criminal conduct by gang members.”
(Pen. Code, § 186.22, subd. (b)(1).) The facts, in the light most favorable to the
judgment (which is the standard of review for a sufficiency-of-evidence argument)
(Jackson v. Virginia (1979) 443 U.S. 307, 319 [61 L.Ed.2d 560, 573]), provided
sufficient evidentiary support for this enhancement. The victim‟s fiancé and the gang
expert both testified the victim was a 29th Street Crip. The mother of defendant‟s son
and the gang expert testified defendant and Newsome were both members of the rival
Oak Park Bloods. The victim verbally acknowledged his gang affiliation before the
shooting began when he stated, “29th Street.” After this acknowledgement, and before
the victim was shot, Newsome and defendant yelled out, “nigga, this is Oak Park.”
Based on this evidence, the jury could reasonably conclude the victim was shot because
he was a rival Crip and that defendant orally proclaiming his membership in a rival street



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gang before the shooting demonstrated that the murder was an act specifically intended to
benefit the rival Oak Park Blood street gang.3
                                                II
    The Trial Court Did Not Err In Refusing To Bifurcate The Gang Enhancement Because
    The Gang Evidence Was Relevant To Prove Motive And Make Sense Of The Shooting
         Defendant contends his due process right to a fair trial was violated when the court
admitted gang evidence and failed to bifurcate the gang enhancement allegation.
         We review an order denying bifurcation for abuse of discretion. (People v.
Hernandez (2004) 33 Cal.4th 1040, 1048.) The burden is on the party seeking
bifurcation (here, defendant) to show a substantial danger of prejudice. (Id. at p. 1049.)
The trial court properly concluded that the evidence of defendant‟s gang membership was
admissible to show motive, was not unduly prejudicial, and therefore no purpose would
be served by bifurcation. (Id. at pp. 1049-1050.) In Hernandez, the California Supreme
Court upheld the denial of bifurcation where a gang member told a woman just before
robbing her and her friend, “ „[Y]ou don't know who you are dealing with,‟ ” naming a
street gang. (Id. at p. 1045.) The court found: “Much of the gang evidence here was
relevant to the charged offense. Indeed, defendant Hernandez himself injected his gang
status into the crime. He identified himself as a gang member and attempted to use that
status in demanding money from the victim.” (Id. at pp. 1050-1051.)
         Here, as the trial court noted, this case presented a “classic [case of] gang
retaliation.” The victim verbally identified as being from 29th Street, which is an affiliate
of the Crip street gang. Defendant then yelled out this was Oak Park, which was the rival
Oak Park Blood street gang. Without this evidence, the shooting would have made no



3      Defendant‟s argument that expert testimony alone cannot prove the gang
enhancement is a non-starter because the gang expert did not provide all the evidence
regarding the gang enhancement.

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sense. Thus, because the evidence supporting the gang enhancement was admissible at
trial to make sense of the shooting and thus would have come in anyway, an inference of
prejudice was dispelled and bifurcation was not necessary. (People v. Hernandez, supra,
33 Cal.4th at pp. 1049-1050.)
                                              III
                Defendant Has Forfeited His Sixth Amendment Contention
                         By Failing To Raise It In The Trial Court
       Defendant contends police deliberately violated his Sixth Amendment right to
counsel when it recorded and used statements of a police station conversation between
him and McCoy, who was the mother of defendant‟s son. Defendant has forfeited this
contention by failing to raise it in the trial court. (People v. Viray (2005)
134 Cal.App.4th 1186, 1208.)
                                              IV
                 The Trial Court Did Not Abuse Its Discretion In Denying
                 Defendant’s Motion To Sever His Trial From Newsome’s
       Defendant contends the trial court erred in denying his request to sever his trial
from Newsome‟s. As we explain, the court did not abuse its discretion in denying
defendant‟s request.
       The Legislature has expressed a preference for joint trials. (People v. Lewis
(2008) 43 Cal.4th 415, 452.) “The court may, in its discretion, order separate trials if,
among other reasons, there is an incriminating confession by one defendant that
implicates a codefendant, or if the defendants will present conflicting defenses.” (Ibid.)
“We review a trial court‟s denial of a severance motion for abuse of discretion based on
the facts as they appeared when the court ruled on the motion.” (Ibid.)
       Here, there were no conflicting defenses, as defendant‟s defense when the motion
was argued was simply that he was not present at the shooting. Moreover, there was no
incriminating confession by one defendant implicating the other. Finally, as the trial

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court noted, the evidence in both cases was cross-admissible, including (importantly) that
many of the same witnesses would have to be called in both trials. Thus, the trial court
did not abuse its discretion in denying defendant‟s request to sever his case from
Newsome‟s.
                                             V
                      Trial Counsel Was Not Ineffective For Failing
                           To Raise A Meritless Miranda Claim
       Defendant contends trial counsel was ineffective for failing to suppress the
recording of his conversation with McCoy in which he made incriminating statements to
McCoy. He argues counsel had no tactical reason for not making an argument pursuant
to Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694]) (Miranda) and that the
recording violated his Fifth Amendment rights. “Miranda requires that a suspect be
given certain advisements to preserve the privilege against self-incrimination, or to
ensure its voluntary and intelligent waiver, during the inherently coercive circumstances
of a „custodial interrogation.‟ ” (People v. Webb (1993) 6 Cal.4th 494, 525-526.)
       Counsel was not ineffective because her performance was not deficient. (See
People v. Waidla (2000) 22 Cal.4th 690, 718 [counsel's deficient performance is the first
prong of an ineffective assistance of counsel analysis].) Miranda warnings do not apply
even when a suspect‟s girlfriend, at police direction, tape records conversations in which
she elicited admissions concerning the homicide. (People v. Webb, supra, 6 Cal.4th at
pp. 524-526.) Here, the situation was even more remote than in Webb. McCoy did not
record the conversation and elicit incriminating statements at police direction. Rather,
she talked to defendant because police told her (incorrectly) that defendant said he
wanted to talk with her, so she went to the police station to talk with him.




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                                  DISPOSITION
     The judgment is affirmed.




                                                ROBIE   , J.



We concur:




     BLEASE             , Acting P. J.




     MAURO              , J.




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