. FACTUAL AND PROCEDURAL BACKGROUND
A. Factual background
1. The Prosecution's Case
The charges against Gater arose from four different incidents, three of which involved Gater shooting at rival gang members. In one of those incidents, Gater's victim died. In another, the victim was injured in the groin area, and in the third, the victim escaped without injury. While the final incident did not involve Gater shooting at anyone, police found a loaded semi-automatic firearm in Gater's possession. The prosecution alleged that Gater was a member of a criminal street gang and that he committed the charged crimes for the benefit of his gang.
a. Gang Evidence
San Diego Police Detective Andrew Spear testified as a gang expert regarding Gater's affiliation with the Skyline-Piru (Skyline) gang. Detective Spear's primary area of expertise relates to the Skyline and O'Farrell Park (O'Farrell) street gangs. According to Spear, the Skyline and O'Farrell gangs are allies. Their mutual enemies include the Emerald Hills Blood Gang, the Lincoln Park Bloods, and the 59 Brims. Spear testified that the relationship between Skyline and O'Farrell is extremely close, and that disrespect shown toward one gang would be considered disrespect to the other. Spear identified Gater as a member of Skyline. According to Spear, Gater's moniker is "D." Gater and his brother, Marcus, are also called the "Gater Boys." Spear identified a photograph he confiscated during a probation search of another individual as depicting Gater, his brother, and other documented Skyline and O'Farrell members "throwing up" gang signs, meaning that they were displaying hand signs that represent gang affiliations.
Spear explained the meaning of a number of statements Gater made in a letter he wrote from jail to a girl who was apparently a Skyline affiliate. Spear understood Gater to be asking the girl to keep other Skyline members motivated to continue committing crimes so that rival gangs would know that "Skyline's out there, they're a factor, they're out there, they're putting in work . . . they're actively trying to shoot other gang members and kill them."
b. The Alexander Murder
Eager Alexander was shot in the back of the head late on November 15, 2002, or early the following morning, on a sidewalk on C Street in downtown San Diego. An ambulance arrived at the scene and transported Alexander to the hospital, where he later died.
In the early morning of November 16, 2002, San Diego Police Detective Bruce Pendleton found two .45-caliber shell casings just southeast of the area where Alexander was found. Pendleton also noticed a bullet hole in a small window of a nearby hotel. He found a .45-caliber bullet inside the hotel, in a rug that was rolled up. Later testing established that the bullet and casings had been fired from the same gun.
Deputy medical examiner Christopher Swalwell conducted an autopsy on Alexander's body on November 17, 2002. Swalwell determined that a gunshot wound to the head caused Alexander's death. The bullet entered above Alexander's left ear and exited through his right eyebrow. Alexander did not die immediately upon being shot, but was declared brain dead several hours after the shooting. Alexander had a few superficial scrapes around his right eye and on the right side of his face. He also had scrapes on the back of his left hand and knee.
Denton Capell, a member of Skyline at the time of Alexander's death, was present at the scene. After Alexander was killed, Capell entered into an agreement with the district attorney's office pursuant to which Capell would receive relocation expenses in exchange for his truthful testimony. Capell testified that members of the Skyline and O'Farrell gangs were present at the scene of the Alexander shooting. Capell said that he did not remember Gater being there. Capell heard two shots that night, and witnessed Alexander fall to the ground, but did not see who shot Alexander. After Alexander was shot, everyone left the scene. Capell acknowledged that he was reluctant to testify as to everything he knew about the Alexander shooting because he feared for his family's safety.
The jury also heard an interview that Detective Pendleton conducted with Capell in February 2005. Capell was in custody at that time for giving false information to a police officer. During the interview, Capell told Pendleton that he saw Gater fire a gun at Alexander twice as Alexander tried to run away from the group of Skyline and O'Farrell members. After the shooting, Capell asked Gater why he had shot Alexander, and Gater replied that he did not know.
Allan Reddick, a friend of Gater's and a Skyline member, was also present at the scene of the Alexander murder. At the time of Gater's trial, Reddick was on probation for having falsely identified himself to a peace officer. Reddick admitted that he did not want to testify against Gater. Reddick claimed that he could not remember many details of the Alexander shooting, including whether Gater had been present at the scene that night. When faced with prior statements he had made to the effect that Gater and his brother Marcus had been present that night, Reddick acknowledged having said that, but ultimately stated that he did not in fact know whether Gater had been there, after all. Although Reddick did not acknowledge that he was afraid to testify, he did admit that he had previously cooperated with police in another matter, and that his house had been burned down afterward.
The jury heard a recording of an interview between Detective Pendleton and Reddick that occurred in October 2003. During that interview, Reddick said that a member of O'Farrell had instigated a fight on the night of the Alexander shooting, and that a group of people had "jumped" Alexander. When Alexander tried to run away from the group, he was shot. Reddick initially told Pendleton that an individual named "Ricky" was the person who instigated the fight and shot Alexander. Reddick subsequently told Pendleton that he had not seen the shooter. When Pendleton told Reddick that he had heard that one of the "Gater boys" was the shooter, Reddick acknowledged that he had heard this, too, and claimed, at first, that he had heard that Marcus Gater was the shooter. After Pendleton told Reddick that he had heard that Demetrius Gater was the shooter, Reddick admitted that he, too, had heard this. When Pendleton asked Reddick whether he had witnessed either of the Gater brothers involved in the fight, Reddick responded, "[M]an I don't want to put my life in danger." Reddick then stated that Demetrius was the shooter, but later qualified his statement, claiming that he knew that the shooter was one of the Gater brothers, but that he did not know which one. Reddick knew that the shooter had been wearing a black hoodie, and that Demetrius had been wearing a black hoodie on the night Alexander was shot, while Marcus had been wearing a gray hoodie.
Gater's brother, William Trice, testified that Gater admitted months after the shooting that he was the one who had shot Alexander. Trice said that he was not present at the scene when the shooting occurred, but that Gater had described to him what had happened. According to Trice, Gater explained that Alexander was "trying to be a bad ass" and was "[t]rying to start shit." Alexander had been "[t]hrowing up gang signs," so Gater and "his homeys" beat up Alexander. Alexander apparently ran off, but then returned. Trice said he guessed that Alexander "wanted more problems." As Alexander tried to run off again, Gater chased him down and shot at him twice. Gater told Trice that he shot Alexander in the back and in the head.*fn2
Another Skyline member, Jimmie Lee Hunter, testified that Gater told him about Alexander's murder while they were incarcerated together.*fn3 Gator explained to Hunter that he and some other Skyline and O'Farrell members had gone downtown on the night of the murder and had run into Emerald Hills members, including Alexander. When Alexander approached them, they "jumped" him. Alexander then ran away. As Alexander was running, Gater shot him twice in the head with a .45-caliber gun.
Detective Spear testified that in his opinion, a hypothetical crime based on the facts of Alexander's murder would have been committed for the benefit of a criminal street gang. According to Spear, because the victim was a member of a rival gang, his death would benefit the shooter's gang by demonstrating that the gang's members are willing to perpetuate violence on their rivals. The murder would also bolster a gang's reputation by causing rival gang members and community members to be in fear, which would mean in turn that people would be less willing to call the police to report crimes and/or testify against a gang member in court.
c. The Roberson Attempted Murder
Fredrick Roberson was shot by a suspected Skyline or O'Farrell member on the night of April 18, 2003, in Emerald Hills. Roberson suffered a gunshot wound to the groin area. The bullet damaged his femoral vein and artery. He was hospitalized for five days and underwent surgery.
San Diego Police Officer John Cochran responded to the scene of the Roberson shooting. Cochran collected four nine-millimeter shell casings from ammunition for a semi-automatic firearm in the street near where Roberson was shot.
At trial, Roberson could not recall much of what happened on the night he was shot, or what he had told officers after the shooting. He remembered that he had tried to pull a gun out of his pocket, but that he was hit by a bullet before he could get a shot off. Roberson knew Gater from school. Roberson testified that Gater was not the person who shot him and said that he had not seen Gater on the night of the shooting.
Detective Jeff Johnson interviewed Roberson on April 19, 2003 at Mercy Hospital. Roberson told Johnson that just before he was shot, he had been walking home when three cars drove by him and caught his attention. As the cars passed, he heard someone yell, "Fuck Emerald Hills." Roberson started to run and heard a gunshot. The shot hit Roberson. Roberson did not identify the shooter.
Detective Patrick Murphy interviewed Roberson in October 2003. Roberson told Murphy that a line of cars had driven past him on the night he was shot. Someone in one of the cars said, "Fuck Emerald Hills," and someone in another car threw a Skyline gang sign. Roberson said that the shooter was a dark skinned Black male who was riding in a Camaro. Roberson was shown a photographic lineup, which included a picture of Gater. Roberson did not identify any of the individuals in the lineup as having been involved in the shooting.
Detective Murphy interviewed Capell, who told Murphy that he was present when Roberson was shot. Capell said that he had been driving one vehicle in a convoy of about six vehicles. Gater and Reginald Moore were in a blue Camaro. Capell also said that he saw Gater shoot four or five rounds from a .38-caliber revolver. At trial, Capell denied that he was present when Roberson was shot. He also denied having made the statements that Murphy attributed to him.
Trice testified that Gater told him about Gater's involvement in the Roberson shooting. Gater told Trice that he fired between two and four shots, and that he hit Roberson in the stomach.
Detective Spear opined, based on a hypothetical scenario, that a crime like the Roberson shooting would have been committed for the benefit of a criminal street gang, for the same reasons he cited with regard to the Alexander shooting.
d. The Hardy Smith Shooting
On September 8, 2003, Hardy Smith, a 59 Brims gang member, was standing outside his home in Paradise Hills when a tan car drove up to the house and stopped.
One of the passengers in the car got out and fired two shots toward the house. One shot hit a car and another hit a wall of the house. Smith was not injured.
Eduardo Arreguin testified that he was the person who was driving the car that day, and that Gater was the shooter. According to Arreguin, he was with Gater at Morse High School on the day of the shooting. Arreguin agreed to give Gater and two other individuals a ride in his car. Arreguin drove the group to Moonlight Liquor store. Everyone except Arreguin got out of the car and went into the store. Upon returning to Arreguin's car, Gater got in the front passenger seat and told Arreguin to follow another car that had also been parked at the liquor store.
As Arreguin drove through the neighborhood, Gater pointed to someone and called him "Hardy." As Arreguin and his passengers drove by Hardy Smith's house, someone in front of the house yelled, "Fuck Skyline." Arreguin stopped the car and Gater got out. Arreguin thought that Smith had a gun in his pants, but he never saw Smith display a gun. Arreguin heard arguing and then heard two or three shots. He thought that the gunshots had come from behind him, going toward Smith's house. Gater ran back to the car. Arreguin did not see a gun in Gater's possession.
Ernest Alexander was called to testify at Gater's trial. Ernest said that he did not know anything about the September 8 shooting. Ernest's mother, Vaneisha Haggerty, also said that she knew nothing about the shooting. However, Detective Brian Pendleton had interviewed Haggerty on the day of the shooting. At that time, Haggerty told Pendleton that her son, Ernest, had said that he and a friend had been driving home on the day of the shooting when they noticed that they were being followed by another car.
When they arrived home and got out of the car, they noticed that the other car had stopped. Ernest saw the front passenger get out of the car. He told his mother that the "Gater boys" were responsible for the shooting. Haggerty did not allow Pendleton to speak with her son.
On the afternoon of September 8, 2003, 14-year-old Anthony Gonzalez and a friend were in Gonzalez's garage. Gonzalez lived on the same street as Smith. The two boys saw a beige Nissan Maxima pull up and stop in front of Smith's house while Smith was outside washing his car. Gonzalez watched as someone got out of the front passenger seat and said something to Smith. The man lifted his shirt, and Gonzalez could see that he had a gun tucked into his pants. The man walked back to the car, leaned into the car, then turned around and fired two shots toward Smith's house. He then got into the car and the car drove away. Gonzalez could not identify the shooter, but described him as an African-American male, in his 20's.
Smith testified that he remembered washing his car in front of his home on September 8, 2003, but said he remembered nothing about a shooting on that date. Smith had previously told Detective Johnson that he had been washing his car in his driveway when a car pulled up in front of the house. A passenger got out of the car and said, "[W]hat's up." Smith understood this to be a challenge to fight. The passenger then pulled a nine-millimeter handgun from the car. Smith ran back toward his house and heard two gunshots. Smith showed Johnson the bullet holes in his car and house. However, Smith refused to identify anyone who participated in the shooting. Smith told Detective Johnson that he did not want to be a "snitch," and said he was worried about what would happen to his mother if something were to happen to him.
Officer Scott Christie responded to the Smith residence on the day of the shooting. Christie recovered two nine-millimeter shell casings near Smith's car, and noticed a bullet hole in the driver's door of Smith's car and another bullet hole in a wall of Smith's house.
Trice testified at trial that Gater admitted that he had been in a car that was chasing another car away from the Moonlight liquor store. As they approached Smith's house, he saw a group of men from another gang. Gater "called them out," but apparently none of them wanted to fight. Gater told Trice that he acted as if he was going to get back into the car, but instead turned around and started shooting at the men.
Hunter also testified that Gater told Hunter that he participated in the shooting at Smith's house. Gater told Hunter that he and three others drove to Smith's house. Smith was with two other members of the 59 Brims. Gater wanted to fight Smith, but Smith refused. Gater told Hunter that he shot a nine-millimeter gun into the air to scare the men. According to Gater, he wasn't aiming at anyone in the group.
Gang expert Detective Spear was presented with a hypothetical example based on the facts of the Smith shooting. Spear opined that such a shooting would have been committed for the benefit of a criminal street gang.
e. Gater's Possession of a Weapon
On September 27, 2003, LaQuisha Rodgers and her boyfriend, Lorenzo Peay, were sitting in Peay's car talking to Gater in front of Gater's house on Manzana Drive in San Diego. Gater noticed a police vehicle coming toward them. He leaned toward Peay's car and attempted to throw a gun that he had been carrying in his waistband into the car. As the police officers grabbed Gater and pulled his hands behind his back, the gun fell into Peay's car through the open window.
Officer Frank Wilson arrested Gater. Wilson found a nine-millimeter semi-automatic handgun on the floor of Peay's car near Rodgers's feet. The handgun was loaded with one round in the magazine.