Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Sonoma County Super. Ct. No. SCR32760
Sepulveda, J.
Defendants Peter James Amante, Rogelio Javier Cardenas, Patrick George Higuera, Jr., and Rico Ricardo Lopez were tried together and convicted of first degree murder in connection with the stabbing death of Ignacio Gomez. (Pen. Code, §§ 187, subd. (a), 189.) The jury also found that each defendant intentionally killed the victim while an active participant in a criminal street gang and that the murder was carried out to further the activities of a criminal street gang (§ 190.2, subd. (a)(22)), and that the murder was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)).
All statutory references are to the Penal Code unless otherwise specified.
Defendants raise a variety of procedural and substantive issues on appeal. We accept respondent’s concession that the trial court imposed an unauthorized consecutive 10-year term on Cardenas for the gang enhancement, and we order that his abstract of judgment be corrected accordingly. In all other respects, we affirm.
I.
Factual And Procedural Background
We summarize the underlying facts, viewing the evidence as a whole and in the light most favorable to the prosecution. (People v. Staten (2000) 24 Cal.4th 434, 460.) On the night of June 26, 2002, defendants were hanging out at defendant Amante’s apartment on Stony Point Road in Santa Rosa, where he lived with his fiancée Kacee Dragoman and their small child. Defendants were all members of the Norteño street gang. Amante’s mother, her boyfriend, Dragoman, Lindsey Ortiz (Amante’s teenaged cousin, who lived in a nearby apartment), and Amante’s and Dragoman’s young son also were present at the apartment. Defendants were drinking beer, playing cards, and watching television. Amante’s mother and her boyfriend eventually went upstairs to bed.
Defendants were tried along with Mario Ochoa-Gonzales (Ochoa), who was acquitted of murder but convicted of being an accessory after the fact (§ 32). Ochoa did not appeal his conviction. All references to “defendants” are to all five men tried for murder (i.e., defendants and Ochoa).
Dragoman and Ortiz testified at trial under grants of immunity.
Dragoman and defendant Ochoa were talking on a patio outside the living room around midnight, when people heard whistles coming from outside the apartment. According to various witnesses, including the prosecution’s expert witness on criminal street gangs, members of the Sureño gang and other Mexican nationals use a particular whistle to identify themselves. Dragoman testified that when she heard the whistle, “It was a bad sign. It’s a rival gang whistle.” Ochoa reported that he heard the whistle coming from the other side of a fence that separated the apartment from Santa Rosa Creek and that there were “Scraps” (a derogatory term for a member of the rival Sureño gang) in the area. At the time, members of the Norteño and Sureño gangs had rival claims to the area by the creek near Stony Point Road. Ochoa also whistled. Defendants ran quickly to the kitchen, opened drawers, then left the apartment; Dragoman and Ortiz followed.
Ortiz heard drawers opening, silverware sliding, and metal banging when defendants went to the kitchen; however, neither she nor Dragoman was in the room or saw what defendants took from the kitchen. Amante was later seen with a butcher knife. Dragoman saw Lopez after the murder with the handle of a knife from her knife set. Field evidence technicians discovered two pieces of metal, apparently from a broken knife blade, within 10 to 15 feet of the victim’s body.
On a nearby bridge on Stony Point Road in a parked car were Rebecca Sandoval (Rebecca) and her small child and stepchild; her husband Miguel Sandoval (Miguel) was outside the car speaking with his father. Miguel had seen his friend Ignacio Gomez (who he knew only as “Jose,” another name Gomez went by) riding his bicycle on the bridge. Gomez lived with his fiancée in a nearby homeless camp, where he bought and sold methamphetamine and heroin. According to Gomez’s fiancée, Gomez was not a gang member, but his friends were associated with the Sureño gang, and he typically wore blue clothing, which was associated with the Sureño gang. Jose, Miguel, and Miguel’s father whistled to each other on the bridge and greeted one another.
Rebecca testified that she “heard people jumping a fence,” and shortly thereafter she saw Ochoa (who she recognized from a youth center) and someone else head toward the bridge she was on. They were followed about a minute or a minute and a half later by Higuera (an acquaintance of Rebecca’s) and another man she did not recognize. As the four men crossed the bridge, one of them said, “ ‘What’s up’ ” to Miguel, and another said “ ‘Norte.’ ” The four crossed the bridge, then three of them went down a bike path under the bridge; Ochoa stayed back.
Dragoman and Ortiz, who were the last to leave Amante’s apartment, walked down a path and found Amante (who was wearing a red 49ers jersey) stuck by his pants leg on the fence separating him from the creek. Ortiz described Amante as drunk. While Dragoman and Ortiz were loosening Amante’s pants from the fence so that he could get down, a large butcher knife fell from Amante’s pocket.
After Amante was freed from the fence, he picked up the knife he had dropped and ran to the people near the car parked on the bridge on Stony Point Road; Amante was holding the knife as if he were going to stab someone. Dragoman and Ortiz left the apartment complex through another route and met up with Amante at the bridge. Amante spoke to the people in the parked car, then dropped the knife he was holding. Dragoman testified that she believed Amante picked up the knife and put it in his pants. Amante crossed the bridge (which was illuminated by street lights), then ran down the path to the creek where the three other defendants had gone. Ortiz followed him but at first could not see anything because it was so dark. Dragoman testified that she saw Amante walk down, meet up with Higuera, Cardenas, Ochoa, and Lopez, then walk back up to the bridge 30 seconds later.
Miguel testified he saw five males and two females on the night of the murder. One of the men asked Miguel if he “bang[ed] Norte,” and Miguel answered that he was just talking to his father. Miguel interpreted the question about banging Norte as “he just wanted problems. But at that time, I mean, I’m not a gangster, so, you know, I just told him I don’t bang nothing.” Miguel saw a black handle in the pocket of the man who asked if he banged Norte, but he did not know whether it was a knife.
Miguel testified that Gomez rode his bicycle down a path under the bridge. Miguel testified that “that’s when I heard they stop him, they stop Jose, and that’s when I—when that happened.” When the men stopped Jose, Miguel heard one of them ask Jose whether he was a Sureño. He testified that he heard people hitting Gomez and calling him “a lot of bad words,” and he heard Gomez yelling “help” and screaming. Miguel saw three men (the person who asked if he “bang[ed] Norte” and two others) hitting Gomez, and he saw one of the men stabbing Gomez with a knife. During the attack, a man wearing a red 49ers jersey over a tank top approached Miguel, dropped a knife on the ground in front of Miguel’s car, then picked it up and ran toward the other men. Miguel testified that the man “went all the way to with the other guys where Jose was and the other guy, one of the girls was telling him to stop. And that’s when my friend Jose, I heard he was not screaming no more. That’s when the other guy and the other two girls came with him to see what happened.” He also testified that “the first time I thought it was just fighting, but when the guy—the other guy came running and he dropped a knife, I know something was happening because he was yelling, and after that he just—he was so quiet.” After the man who dropped the knife started running to catch the other guys, “[t]hey were all fighting. And that’s when the other guy and the two girls came all together. That’s when—when there was no noise. And that’s when I heard the bike fall on the floor.”
Gomez suffered 38 to 40 stab wounds on his head, face, chest, back, and shoulders; he died from multiple wounds to the torso after being stabbed in the heart and lungs. It could not be determined whether one or more stabbing instrument was used. A forensic pathologist opined that one person could have inflicted all of the stab wounds in less than a minute, and that the victim lived only a couple of minutes after he was stabbed in the heart.
Approximately five minutes after Ortiz had started down the path, Ortiz saw Ochoa (who was not armed) coming up the path. He was followed by Cardenas and Lopez, who ran up the path toward Ortiz. Lopez had blood on his black and white Raiders jersey; Ortiz did not see a knife on him. Ortiz did not see blood on Cardenas, and she never saw him with a knife. Ortiz continued down the path, and eventually saw Amante and Higuera. Amante was running; Higuera’s arm was cut, and he was acting as if he were in pain.
After defendants came up from the creek, they returned to Amante’s and Dragoman’s apartment. As they were walking back across the bridge, Ortiz and defendants lifted their shirts up toward their heads after Ortiz saw a police car and directed the others to hide their faces. Rebecca and Miguel drove to a nearby convenience store so that Rebecca could call 911, because it was obvious to her that “something happened.”
In response to the 911 call, a Santa Rosa police officer went to the bridge and looked down the bike path with a flashlight but did not see anyone under the bridge. Police did not find the victim’s body until later that morning.
When the group returned to Amante’s apartment, five members of the Norteño gang joined them. Lopez told Amante that “this was for Cinco de Mayo,” talked about “eating people,” then put on a blue beanie hat with “Sur” written on it that he had not been wearing when he left the apartment. Dragoman testified that Lopez “was kind of like bragging like walking around with a little strut, stuff like that, kind of like a larger than life moment for him or something.” Ortiz testified that after Lopez made the remark about Cinco de Mayo, “Pete, he said—I think he said, ‘What the fuck are you talking about?’ And then Rico [Lopez] said something after that and then everyone just got quiet.” Ochoa paced nervously, said he was concerned about police being at the creek, and commented, “ ‘I don’t think that guy was a Scrap.’ ” Ochoa flushed a black handle from Dragoman’s knife set down the toilet. Higuera was on the telephone, had a t-shirt wrapped around his right arm and was applying pressure to it, and appeared to be in a rush to leave. Lopez had blood on his shoes. Ortiz and Dragoman helped wash Lopez’s and Ochoa’s clothing.
Amante had been hospitalized after being stabbed twice on Cinco de Mayo, less than two months before Gomez’s murder. Amante told a Santa Rosa police officer who stopped him for a traffic violation the night after the murder that he had almost died after the stabbing. Amante told the officer that he had seen graffiti on a fence on Stony Point Road that said “ ‘Whacky [Amante’s nickname] die slowly,’ ” and that he believed he was a “marked man.”
Police found the victim the next morning near a bike path on the north side of the creek. When police found the victim, his pants were pulled down below his waist. He was wearing blue clothing consistent with what Sureño gang members wear. Police found Sureño and Norteño gang graffiti in the area near where Gomez was found. Some Norteño graffiti had been written over Sureño graffiti, a “ ‘crossout’ ” that was “a huge form of disrespect in the gang world,” according to the prosecution’s gang expert. As discussed more fully below, the expert also testified that it was his opinion that defendants were active members of the Norteño street gang at the time of the murder, and that such a murder would be committed for the benefit of the gang because killing a rival gang member would show the gang’s power and instill fear of the gang in the community.
On the night of June 28, Detective Leslie Vanderpool returned to the bridge with Miguel, who directed the officer to the apartment where Amante lived. Miguel later identified Amante (in a photographic lineup) as one of the people who stabbed the victim.
Defendants were charged in a first consolidated information with murder (§ 187, subd. (a)—count 1), with a special circumstance that they intentionally killed the victim while they were active participants in a criminal street gang, and that the crime was carried out to further the activities of the gang (§ 190.2, subd. (a)(22)). The information also included an enhancement, alleging that defendants committed the crime for the benefit of a street gang (§ 186.22, subd. (b)(1)).
We hereafter sometimes refer to the gang enhancement and special circumstance collectively as the “gang allegations.”
The jury found Amante, Cardenas, Higuera, and Lopez guilty as charged and found the gang allegations true. Amante, Higuera, and Lopez were sentenced to prison for life without the possibility of parole. Cardenas was sentenced to 25 years to life for murder pursuant to section 190.5, subdivision (b), with 10 years for the gang enhancement (§ 186.22, subd. (b)(1); see post, § II.H), for a total of 35 years to life. Defendants Amante, Cardenas, Higuera, and Lopez timely appealed.
As to Amante and Lopez, the court apparently sentenced the defendants pursuant to section 190.2, subdivision (a)(22), which provides a sentence of life without the possibility of parole. The trial court did not address the gang allegations when sentencing Amante and Lopez; although their abstracts of judgment list the allegations as being tied to their murder convictions, the abstracts do not specify whether sentence was stayed or imposed on the allegations. The trial court may have intended to stay the gang enhancement (§ 186.22, subd. (b)(1)) for Amante and Lopez, as the probation department recommended in those defendants’ presentence reports. Higuera’s counsel requested at Higuera’s sentencing hearing that the trial court strike the “life without parole enhancement” (presumably, a reference to § 190.2, subd. (a)(22)); however, the trial court imposed that sentence. The court did not, however, specifically address either of the gang allegations at the sentencing hearing. Higuera’s abstract of judgment lists the gang allegations but does not specify whether sentence was stayed or imposed on them.
The statute provides that a defendant found guilty of first degree murder who was between 16 and 18 years old at the time of the crime shall be sentenced to life without the possibility of parole or, at the discretion of the trial court, to 25 years to life. Cardenas’s abstract of judgment reflects that the special circumstance (§ 190.2, subd. (a)(22)) was stayed.
II.
Discussion
Defendants raise a number of issues related to their murder convictions, the gang allegations that were found true, and several other procedural and substantive issues. We have elected to address the issues raised by the various defendants in an order different from the briefing in this case, grouping issues relating to general subjects, such as the gang allegations, together. We begin by addressing the first degree murder convictions.
With the exception of a sentencing error specific to defendant Cardenas, Amante raises all of the issues in this appeal. The other defendants join in many of Amante’s arguments (Cal. Rules of Court, rule 8.200(a)(5)), either with no further comment or with the addition of arguments specific to them.
A. Issues Relating to Murder Convictions.
1. Theories of liability—background
Defendants were prosecuted for first degree murder under three theories of liability. We first summarize the three theories of liability, then address the jury instructions regarding and the evidence supporting the convictions pursuant to those theories.
The jury verdict forms indicate that the jury found defendants guilty of first degree murder; the forms do not indicate the theory of liability upon which jurors relied, i.e., whether the jury concluded that a particular defendant was an actual perpetrator or whether he aided and abetted first degree murder.
a. Actual perpetrators
The prosecutor contended that jurors could find any defendant who was found to have actually stabbed the victim guilty of murder. Murder is the unlawful killing of another with malice aforethought. (§ 187, subd. (a).) First degree murder is murder which is committed with willfulness, deliberation, and premeditation. (§ 189.) “ ‘ “Deliberation” refers to careful weighing of considerations in forming a course of action; “premeditation” means thought over in advance. [Citations.]’ ” (People v. Young (2005) 34 Cal.4th 1149, 1182.) During his closing argument, the prosecutor emphasized (without objection) that jurors did not need to decide who actually stabbed the victim in order to convict defendants of first degree murder, and that in the alternative they could rely on one of two aiding and abetting theories.
The jury was instructed only upon deliberate and premeditated first degree murder.
b. Accomplice liability
i. Straight accomplice liability
The prosecutor argued that the jury could convict any defendant who was found to have aided and abetted the murder of the victim. “ ‘All persons concerned in the commission of a crime,... whether they directly commit the act constituting the offense, or aid and abet in its commission,... are principals in any crime so committed.’ (§ 31.) Accordingly, an aider and abettor ‘shares the guilt of the actual perpetrator.’ (People v. Prettyman [(1996)] 14 Cal.4th [248,] 259.)” (People v. Mendoza (1998) 18 Cal.4th 1114, 1122 (Mendoza).) “A person aids and abets the commission of a crime when he or she, (i) with knowledge of the unlawful purpose of the perpetrator, (ii) and with the intent or purpose of committing, facilitating, or encouraging commission of the crime, (iii) by act or advice, aids, promotes, encourages or instigates the commission of the crime.” (People v. Cooper (1991) 53 Cal.3d 1158, 1164.) “The mental state necessary for conviction as an aider and abettor is knowledge of the perpetrator’s criminal purpose and the intent or purpose of committing, encouraging, or facilitating the commission of the target offense.” (Mendoza, supra, at p. 1118, original italics.)
To be found guilty of murder under a straight aiding and abetting theory, “the aider and abettor must know and share the murderous intent of the actual perpetrator.” (People v. McCoy (2001) 25 Cal.4th 1111, 1118 (McCoy).) However, “[a]bsent some circumstances negating malice one cannot knowingly and intentionally help another commit an unlawful killing without acting with malice.” (Id. at p. 1123.) In other words, if a defendant knows the perpetrator intends to commit murder and intends to aid in that criminal act, the aider and abettor necessarily intends to kill.
ii. Natural and probable consequences doctrine
The third theory advanced by the prosecutor was that jurors could convict a defendant if he was found to have aided and abetted one of five “target crimes” (breach of peace, assault, battery, assault with a deadly weapon, or assault by means of force likely to produce great bodily injury), and that first degree murder was a natural and probable consequence of the target crime. “A person who knowingly aids and abets criminal conduct is guilty of not only the intended crime but also of any other crime the perpetrator actually commits that is a natural and probable consequence of the intended crime. The latter question is not whether the aider and abettor actually foresaw the additional crime, but whether, judged objectively, it was reasonably foreseeable. [Citation.]” (Mendoza, supra, 18 Cal.4th at p. 1133, original italics.) For a defendant to be convicted under the natural and probable consequences doctrine, “the trier of fact must find that the defendant, acting with (1) knowledge of the unlawful purpose of the perpetrator, and (2) the intent or purpose of committing, encouraging, or facilitating the commission of a predicate or target offense; (3) by act or advice aided, promoted, encouraged or instigated the commission of the target crime. But the trier of fact must also find that (4) the defendant’s confederate committed an offense other than the target crime; and (5) the offense committed by the confederate was a natural and probable consequence of the target crime that the defendant aided and abetted.” (People v. Prettyman, supra, 14 Cal.4th at p. 262, original italics, fn. omitted.) Aider and abettor liability “is a question of legal causation which is independent of any intent that the result in question occurred. [Citation.] Thus, the ultimate factual question is whether the perpetrator’s criminal act, upon which the aider and abettor’s derivative criminal liability is based, was ‘ “reasonably foreseeable” ’ or the probable and natural consequence of a criminal act encouraged or facilitated by the aider and abettor. [Citation.]” (People v. Francisco (1994) 22 Cal.App.4th 1180, 1190 [upholding first degree murder conviction].)
In order to convict a defendant under the natural and probable consequences doctrine, “the jury first must determine the crimes and degrees of crimes originally contemplated and committed, if any, by the perpetrator. Next, the jury must decide whether the aider and abettor knew of the perpetrator’s intent to commit the originally contemplated criminal acts and whether the aider and abettor intended to encourage or facilitate the commission of those acts. In other words, the jury must determine if the aider and abettor is liable vicariously for, i.e., guilty of, the crime or crimes originally contemplated. Then the jury must determine whether other crimes and degrees of crimes charged against the aider and abettor were committed by the perpetrator. If so, the jury must determine whether those crimes, although not necessarily contemplated at the outset, were reasonably foreseeable consequences of the original criminal acts encouraged or facilitated by the aider and abettor. [Citations.] In other words, the jury must determine if the aider and abettor is liable vicariously for, i.e., guilty of, other crimes beyond those contemplated originally.” (People v. Woods (1992) 8 Cal.App.4th 1570, 1586.)
2. Jury instructions on accomplice liability
Defendants challenge the way in which the jury was instructed regarding straight aiding and abetting and regarding the natural and probable consequences doctrine, and the way in which the trial court responded to a question related to the natural and probable consequences doctrine. On appeal, we determine de novo whether a jury instruction correctly states the law, applying our independent judgment. (People v. Posey (2004) 32 Cal.4th 193, 218; People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.) We consider the instructions given as a whole, not in isolation. (People v. Ramos, supra, at p. 1088.) We assume that the jurors are intelligent people capable of understanding and correlating all the jury instructions that are given. (Ibid.; People v. Ayers (2005) 125 Cal.App.4th 988, 997.)
a. Background
Defendants objected below to the standard jury instruction regarding the natural and probable consequences doctrine (CALJIC No. 3.02) on various grounds. Higuera’s counsel objected that there was no discussion in the proposed jury instructions regarding how the jury was supposed to address premeditation and deliberation when considering whether defendants were guilty of murder under an aiding and abetting theory. Cardenas’s counsel requested that CALJIC No. 3.02 be modified so that jurors could be asked specifically to determine whether a defendant committed first or second degree murder when considering whether he was guilty under the natural and probable consequences doctrine. The trial court apparently did not rule on Cardenas’s proposed instruction, which was not given to the jury.
The standard instruction provides: “One who aids and abets [another] in the commission of a crime [or crimes] is not only guilty of [that crime] [those crimes], but is also guilty of any other crime committed by a principal which is a natural and probable consequence of the crime[s] originally aided and abetted. [¶] In order to find the defendant guilty of the crime[s] of ____, [under this theory,] [as charged in Count[s] ____,] you must be satisfied beyond a reasonable doubt that: [¶] 1. The crime [or crimes] of ____ [was] [were] committed; [¶] 2. That the defendant aided and abetted [that] [those] crime[s]; [¶] 3. That a co-principal in that crime committed the crime[s] of ____; and [¶] 4. The crime[s] of ____ [was] [were] a natural and probable consequence of the commission of the crime[s] of ____. [¶] [In determining whether a consequence is ‘natural and probable,’ you must apply an objective test, based not on what the defendant actually intended, but on what a person of reasonable and ordinary prudence would have expected likely to occur. The issue is to be decided in light of all of the circumstances surrounding the incident. A ‘natural’ consequence is one which is within the normal range of outcomes that may be reasonably expected to occur if nothing unusual has intervened. ‘Probable’ means likely to happen.] [¶] [You are not required to unanimously agree as to which originally contemplated crime the defendant aided and abetted, so long as you are satisfied beyond a reasonable doubt and unanimously agree that the defendant aided and abetted the commission of an identified and defined target crime and that the crime of (charged crime) was a natural and probable consequence of the commission of that target crime.]”
The proposed instruction provided: “If you determine beyond a reasonable doubt that the defendant aided and abetted a _____, and that the killing was a natural and probable consequence of _____, you must then further determine whether the killing was murder and if so, what degree? To find that the murder is first degree, you must make the following determinations: [¶] 1. The actual killer committed the first degree murder under the definitions supplied in the other instructions defining first degree murder. [¶] 2. The circumstances which make the murder first degree as to the actual killer were a natural and probable consequence of the commission of the _____ rather than the independent product of the actual killer. (or) [¶] [3]. The killer’s formulation of the enhanced mental state necessary for the first degree murder, as opposed to a simple intent to kill, was a natural and probable consequence of the commission of the _____ rather than the independent product of the mind of the killer. [¶] If you have a reasonable doubt whether the offense committed was first degree murder or second degree murder, you must give the defendant the benefit of the doubt and find him guilty of second degree murder.”
The jury instead was instructed with CALJIC No. 3.02 (ante, fn. 13), which was modified to list five target crimes (breach of peace, assault, battery, assault with a deadly weapon, and assault by means of force likely to produce great bodily injury); the nontarget crime was identified as “murder, as charged in Count One,” without specifying a degree. The jury also was instructed with CALJIC Nos. 3.00 (principals—defined) and 3.01 (aiding and abetting—defined). Jurors were further instructed on the definition of murder (CALJIC No. 8.10), the concept of malice aforethought (CALJIC No. 8.11), and the requirement that first degree murder must be deliberate and premeditated (CALJIC No. 8.20). The jury also was instructed on the elements required to prove the lesser included offenses of second degree murder (CALJIC Nos. 8.30, 8.31) and voluntary manslaughter (CALJIC Nos. 8.37, 8.40).
“ ‘Second degree murder is the unlawful killing of a human being with malice, but without the additional elements (i.e., willfulness, premeditation, and deliberation) that would support a conviction of first degree murder. [Citations.]’ [Citation.]” (People v. Chun (2009) 45 Cal.4th 1172, 1181; §§ 187, subd. (a), 189.) Voluntary manslaughter is the unlawful killing of another either with an intent to kill, or with conscious disregard for human life. (§ 192, subd. (a).)
During deliberations, the jury sent the trial court the following note: “We are having difficulties with the sentence [from CALJIC No. 8.20 (deliberate and premeditated murder):] ‘To constitute a deliberate and premeditated killing, the slayer must weigh and consider the question of killing and the reasons for and against such a choice and, having in mind the consequences, he decides to and does kill[,’] versus deliberated and premeditated breach of peace or assault that results in a killing. [¶] We need more clarification of premeditation and deliberation and how to relate it to section [presumably, CALJIC No.] 3.02 [the instruction regarding the natural and probable consequences doctrine].”
Following a lengthy discussion with the prosecutor and defendants’ attorneys, the trial court sent the following response to the jury: “The term ‘deliberate and premeditate’ refers only to First Degree Murder. First Degree Murder is defined by jury instruction 8.20. [¶] The term ‘deliberate and premeditate’ is not an element of any of the following: Breach of the Peace, Assault, Battery, Assault by Means of Force likely to Produce Great Bodily Injury, or Assault with a Deadly Weapon. Those crimes are defined elsewhere in the Court’s instructions: [¶] Breach of the Peace is defined in jury instruction 16.260. [¶] Assault is defined in jury instruction 9.00. [¶] Battery is defined in jury instruction 16.140. [¶] Assault by Means of Force likely to produce Great Bodily Injury is defined in jury instruction 9.02. [¶] Assault with a Deadly Weapon is defined in jury instruction 9.02. [¶] Jury instruction 3.02 may refer to First Degree Murder, Second Degree Murder or Voluntary Manslaughter, depending upon what you determine the facts to be. Those crimes are defined elsewhere in the court’s instructions. [¶] If this response does not address your concern, please submit a further request.” The jury did not request any further clarification of jury instructions.
b. Straight aiding and abetting instructions
Relying on McCoy, supra, 25 Cal.4th 1111, defendants argue that the “instruction given on aiding and abetting” failed to convey the principle that an aider and abettor cannot be convicted based on the mental state of the perpetrator. (Id. at p. 1122.) Although defendants direct us to no specific aiding and abetting jury instruction that was deficient, we presume (based on a passing reference in Amante’s brief) that they refer to CALJIC No. 3.00 (principals—defined), which states that each principal, regardless of the extent or manner of participation in a crime, is “equally guilty.” No objection was raised below to the language in this standard instruction, and any objection to it is therefore waived. (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1163 (Samaniego).)
The McCoy decision cautions that the rule that an aider and abettor’s mental state must be at least that required of the direct perpetrator does not apply if the aider and abettor’s guilt is predicated on the natural and probable consequences doctrine. (McCoy, supra, 25 Cal.4th at pp. 1117-1118, 1122.)
Even assuming that the objection was not waived, it lacks merit. We note that the evidence required to prove the mental states that defendants protest they may not have possessed—premeditation, deliberation, and malice aforethought—does not, under the circumstances, require more than is required to prove aiding and abetting. It is virtually impossible for an aider and abettor to know of a perpetrator’s intent to commit murder and to decide to aid in the accomplishment of that crime, without at least a brief period of deliberation and premeditation. A calculated judgment may be arrived at quickly. (People v. Hughes (2002) 27 Cal.4th 287, 371; Samaniego, supra, 172 Cal.App.4th at p. 1166.)
Amante directs this court to a recent Second District Court of Appeal opinion that is critical of the portion of CALCRIM No. 400 which states (as does CALJIC No. 3.00) that one is “equally guilty” of a crime regardless of whether one personally commits the offense (the actual perpetrator), or merely aids and abets its commission. The court concluded that the instruction was potentially misleading, as it did not inform the jury that an aider and abettor can be guilty of a lesser crime than the actual perpetrator. (Samaniego, supra, 172 Cal.App.4th at pp. 1163-1165.) Samaniego appears to have considered the “equally guilty” language in isolation from the other jury instructions given to the jury. The “equally guilty” language in CALJIC No. 3.00 sets out the basic, introductory principle that both actual perpetrators and those who merely aid and abet the commission of a crime are deemed to be principals under California law. (§ 31.) This language does not state that the actual perpetrator and the one who aids and abets the commission of the crime must be found guilty of the same offense, nor would a juror reasonably so interpret it, especially in light of other instructions given here.
Samaniego, supra, 172 Cal.App.4th 1148 was filed after briefing was completed in this case. Amante wrote a letter to this court directing us to the decision, without any supporting argument.
In the present case, the trial court adequately explained the legal requirements for being found guilty as an aider and abettor. When CALJIC Nos. 3.00 and 3.01 are viewed together with the other jury instructions given in this case defining the required mental states for the various charged offenses, we are satisfied that the aiding and abetting instructions meet the intent requirement of McCoy, supra, 25 Cal.4th at p. 1111. These instructions required that the defendant (1) knew that the perpetrator intended to commit murder, second degree murder, or voluntary manslaughter and (2) intended to aid and abet the perpetrator in the commission of those offenses.
Even if the “equally guilty” language could have led to confusion on a straight aiding and abetting theory, we conclude, as the court did in Samaniego, that any error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24; Samaniego, supra, 172 Cal.App.4th at p. 1165.) The court in Samaniego concluded that the jury necessarily found that the appellants acted willfully with intent to kill, because they were instructed regarding a multiple-murder special circumstance (§ 190.2, subd. (a)(3)), which was found true. (Samaniego, supra, at pp. 1153, 1165.) That instruction provided that if the defendant was not the actual killer, the People had the burden of proving beyond a reasonable doubt that he acted with the intent to kill for the special circumstance to be true. (Id. at p. 1165.) Similarly here, the jury was instructed that in order to find the gang special circumstance (§ 190.2, subd. (a)(22)) true if a defendant was not an actual killer, it had to find that the defendant “with the intent to kill aided, abetted, counseled, commanded, induced, solicited, requested, or assisted any actor in the commission of the murder in the first degree.” (CALJIC No. 8.80.1, italics added.) The jury necessarily found that defendants acted with the requisite mental states for purposes of aiding and abetting. (Samaniego, supra, at pp. 1165-1166.)
Amante discounts the significance of the special circumstance instruction, arguing that it simply assumes the commission of first degree murder, without explaining how to determine the degree of murder that was committed. However, those principles were adequately set forth elsewhere in the instructions, as we discuss in the next section.
C. Natural and probable consequences doctrine instructions
Defendants argue that the “bare-bones CALJIC instructions used here to describe the natural and probable consequences doctrine were erroneous in several respects.” Amante focuses on the fact that the jury was not specifically instructed that it could find him guilty of a lesser offense than first degree murder under the natural and probable consequences doctrine. This case is distinguishable from People v. Woods, supra, 8 Cal.App.4th 1570, upon which Amante relies. In Woods, two defendants (Barry Dewayne Woods and John Windham) were convicted of first degree murder after they both assaulted two victims to coerce them into telling defendants where someone was located. (Id. at pp. 1577, 1579.) Woods later shot and killed another victim outside a nearby apartment complex, resulting in his conviction of first degree murder. (Ibid.) Windham was prosecuted under the theory that the first degree murder was a reasonably foreseeable consequence of the assaults in which he had participated, and that he was therefore liable as an aider and abettor for the first degree murder committed by Woods. (Id. at p. 1579.) The court reversed Windham’s conviction, concluding that the trial court erred when, in response to a question from the jury during deliberations, it informed jurors that they could not convict Windham of second degree murder as an aider and abettor if they determined that Woods (the perpetrator of the killing) was guilty of first degree murder. Even though the perpetrator in fact committed first degree murder, it was possible that only second degree murder was reasonably foreseeable under the natural and probable consequences doctrine. (Id. at pp. 1577, 1579.) The court concluded that “in determining aider and abettor liability for crimes of the perpetrator beyond the act originally contemplated, the jury must be permitted to consider uncharged, necessarily included offenses where the facts would support a determination that the greater crime was not a reasonably foreseeable consequence but the lesser offense was such a consequence. Otherwise,... the jury would be given an unwarranted, all-or-nothing choice for aider and abettor liability.” (Id. at p. 1588.)
The jury here was given no such impermissible all-or-nothing choice. It was instructed on the definitions of first degree murder (CALJIC No. 8.20), second degree murder (CALJIC Nos. 8.30, 8.31), and voluntary manslaughter (CALJIC Nos. 8.37, 8.40). Unlike in Woods, supra, 8 Cal.App.4th 1570, the jurors were not told that they could not convict an aider and abettor of a lesser crime than the actual perpetrator. To the contrary, they were specifically told, in response to the question they submitted during deliberations, that “[j]ury instruction 3.02 may refer to First Degree Murder, Second Degree Murder or Voluntary Manslaughter, depending upon what you determine the facts to be.” (Italics added.)
That is not to say, however, that defendants were entitled to instructions on three additional lesser offenses (“heat of passion,” “unreasonable self-defense voluntary manslaughter,” and “involuntary manslaughter”) that Amante claims on appeal were reasonably foreseeable under the natural and probable consequences doctrine. The Woods court emphasized that “the trial court need not instruct on a particular necessarily included offense if the evidence is such that the aider and abettor, if guilty at all, is guilty of something beyond that lesser offense, i.e., if the evidence establishes that a greater offense was a reasonably foreseeable consequence of the criminal act originally contemplated, and no evidence suggests otherwise.” (People v. Woods, supra, 8 Cal.App.4th at p. 1578, italics added; see also People v. Waidla (2000) 22 Cal.4th 690, 733 [trial court has sua sponte duty to instruct on uncharged lesser included offense only if evidence presented would, if accepted, absolve defendant from guilt of the greater offense but not the lesser].) Moreover, under the natural and probable consequences doctrine, the jury must determine what crime the perpetrator actually committed. (People v. Prettyman, supra, 14 Cal.4th at p. 268 [jury must determine whether offense “actually committed” was natural and probable consequence of crime defendant aided and abetted]; People v. Caesar (2008) 167 Cal.App.4th 1050, 1058 [jury must make finding as to crime committed by confederate in applying natural and probable consequences doctrine]; People v. Woods, supra, at p. 1586.)
An unlawful killing may constitute voluntary manslaughter in the absence of an intent to kill where the killer, in the heat of passion, intends to cause serious bodily injury short of death or to endanger another’s life by very reckless conduct. (§ 192, subd. (a); People v. Lasko (2000) 23 Cal.4th 101, 110-111.) Lopez (joined by Higuera and Ochoa, but not Amante or Cardenas) requested below that CALJIC No. 8.42 (sudden quarrel or heat of passion and provocation explained) be given, arguing that the victim’s gang whistles before the attack on him amounted to provocation. The trial court declined to give the instruction, stating that it was “not seeing that there’s any evidence to give that instruction at all.” (People v. Cole (2004) 33 Cal.4th 1158, 1215 [no duty to instruct on lesser offense upon request unless substantial evidence supports instruction].)
“[W]hen a defendant, acting with a conscious disregard for life, unintentionally kills in unreasonable self-defense, the killing is voluntary... manslaughter.” (People v. Blakeley (2000) 23 Cal.4th 82, 91.) No defendant requested below that the instruction be given.
Involuntary manslaughter occurs “in the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection.” (§ 192, subd. (b).) Lopez (joined by all other defendants) requested below that the jury be instructed on the definition of involuntary manslaughter (CALJIC No. 8.45), stating that if the prosecution could argue that first degree murder was the natural and probable consequence of the target crime of breach of peace (§ 415), involuntary manslaughter likewise was a natural and probable consequence of that target offense. The trial court concluded that the evidence did not support an involuntary manslaughter instruction, and it declined to give one. (People v. Cole, supra, 33 Cal.4th at p. 1215.)
No evidence suggests that any of the three offenses Amante cites on appeal was a reasonably foreseeable consequence of the act originally contemplated, or that the lesser offenses were actually committed by the perpetrator. (People v. Woods, supra, 8 Cal.App.4th at p. 1578; People v. Prettyman, supra, 14 Cal.4th at p. 268.) A reasonably foreseeable consequence of gang members arming themselves with knives to go to an area claimed by a rival gang after hearing a whistle from that gang was the commission of first degree, deliberate, and premeditated murder. There is no evidence that the unprovoked stabbing of a stranger more than 40 times, under those circumstances, amounted to one of the lesser offenses identified by Amante. The trial court did not err in failing to instruct on additional nontarget offenses.
Amante also argues that the trial court failed to instruct jurors regarding how to determine which degree of murder was foreseeable under the natural and probable consequences doctrine. In fact, the trial court instructed the jury on their duty to determine whether any murder conviction was of the first or second degree (CALJIC No. 8.70), their obligation to return a verdict of second degree murder if they could not unanimously agree whether first or second degree murder was committed (CALJIC No. 8.71), their obligation to return a verdict of manslaughter if they could not unanimously agree whether murder or manslaughter was committed (CALJIC No. 8.72), their obligation to unanimously agree as to whether a defendant was guilty of first degree murder or the lesser offenses of second degree murder or voluntary manslaughter (CALJIC No. 8.74), and their duty “to determine whether the defendant is guilty or not guilty of murder in the first degree or of any lesser crime thereto” (CALJIC No. 8.75, italics added).
Even assuming, for the purposes of Amante’s argument, that the jury instructions were deficient in not specifically informing jurors of their obligation to select the degree of murder for purposes of the natural and probable consequences doctrine, any ambiguity regarding this issue was cured by the clarification provided by the trial court in response to the jury’s question. “If a jury instruction is ambiguous, we inquire whether there is a reasonable likelihood that the jury misunderstood and misapplied the instruction. [Citations.] ‘ “ ‘[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction.’ ” [Citations.]’ [Citation.]” (People v. Smithey (1999) 20 Cal.4th 936, 963-964, italics added.) Here, the trial court informed the jury, in response to its question, that “[j]ury instruction 3.02 may refer to First Degree Murder, Second Degree Murder or Voluntary Manslaughter, depending upon what you determine the facts to be.” (Italics added.) The italicized portion of the clarification made clear that jurors could consider lesser offenses under the natural and probable consequences doctrine, and that they were obligated to make a determination of the degree of homicide. Having reviewed the entire charge to the jury, we conclude that there was no reasonable likelihood that the jury misunderstood or misapplied the instructions. (Ibid.)
Amante next argues that the trial court erred by not instructing the jury that “the objective foreseeability determination is (1) to be based upon a reasonable person in the defendant’s position and (2) may [sic] only consider those facts known to the defendant.” (Original italics.) As the authorities upon which Amante relies make clear, the test in determining liability under the natural and probable consequences doctrine is whether a reasonable person under like circumstances would view the crime as reasonably foreseeable, a determination to be made in light of all the circumstances surrounding the incident. (People v. Nguyen (1993) 21 Cal.App.4th 518, 531; People v. Woods, supra, 8 Cal.App.4th at p. 1587.) CALJIC No. 3.02—which provides that jurors “must apply an objective test, based not on what the defendant actually intended, but on what a person of reasonable and ordinary prudence would have expected likely to occur,” a determination to be made “in light of all of the circumstances surrounding the incident”—adequately communicated these principles.
A recent decision from the Third District, People v. Hart (2009)176 Cal.App.4th 662, reversed an attempted murder conviction that was based on the natural and probable consequences doctrine. Relying upon its prior decision in People v. Woods, supra, 8 Cal.App.4th 1570, the court held that the jury must be instructed that an aider and abettor may be convicted of attempted unpremeditated murder under the natural and probable consequences doctrine even though the actual perpetrator is convicted of attempted premeditated murder, if under the facts of the case a reasonable jury could so conclude. For the reasons set forth above, this recent decision does not impact our conclusion under the particular facts presented here.
In sum, we find no reversible error regarding the natural and probable consequences jury instructions.
d. Response to jury’s question
In a related argument, defendants claim that the trial court’s “unbalanced and flatly incomplete” response to the jury’s question quoted above (ante, § II.A.2.a) amounted to reversible error. The trial court “has a primary duty to help the jury understand the legal principles it is asked to apply.” (People v. Beardslee (1991) 53 Cal.3d 68, 97 [trial court erred in refusing to further explain jury instructions in response to request from jurors during deliberations]; § 1138 [information requested regarding point of law “must be given”].) “[I]f jury instructions are important in general, there is no category of instructional error more prejudicial than when the trial judge makes a mistake in responding to a jury’s inquiry during deliberations.” (People v. Thompkins (1987) 195 Cal.App.3d 244, 252-253.) No such mistake was made here.
Amante argues that the trial court’s response failed to “explain how jurors should make the degree determination for non-killers.” We first observe that the jury did not ask how to make such a “degree determination.” Instead, the jury’s question focused on whether jurors had to find that a defendant deliberated and premeditated the target crimes under the natural and probable consequences doctrine. The trial court first told the jury that deliberation and premeditation were not elements of any of the target crimes, and then further clarified that CALJIC No. 3.02 (liability of an aider and abettor under the natural and probable consequences doctrine) could refer to liability for first degree murder, second degree murder, or voluntary manslaughter, “depending upon what you determine the facts to be,” a response that (when read in conjunction with other jury instructions) made clear that the jury was obligated to make a degree determination.
The trial court’s response to the jury’s question stated that if the response did not address jurors’ concerns, to “please submit a further request.” The jury did not provide any further questions. “[A] jury is presumed to understand a judge’s answer to its question.” (Weeks v. Angelone (2000) 528 U.S. 225, 234.) We reject the argument that the trial court erred in responding to the jury’s question here.
3. Substantial evidence supports murder convictions
Higuera simply joins in Amante’s argument that there was insufficient evidence to support his murder conviction, without specifically addressing the evidence implicating him in Gomez’s murder, and he did not file a reply brief. We therefore do not address in detail below the specific evidence presented as to him. Suffice it to say, however, that a review of the entire record reveals sufficient evidence to support Higuera’s first degree murder conviction. Lopez does not challenge the sufficiency of the evidence of his murder conviction.
In evaluating whether a conviction is supported by the evidence, we determine whether the trier of fact could rationally find defendants guilty beyond a reasonable doubt. We must view the evidence in the light most favorable to the prosecution and must presume in support of the judgment the existence of every fact that the jury could reasonably deduce from the evidence. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) “Our inquiry on appeal ‘in light of the whole record [is] whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ [Citations.]” (People v. Sanchez (1995) 12 Cal.4th 1, 31-32 (Sanchez), original italics, overruled on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421 & fn. 22.)
a. Evidence that defendants were “actual” killers
Amante, Cardenas, and Higuera argue that there was insufficient evidence to prove that they were “actual killer[s].” As respondent acknowledges, the evidence did not conclusively establish whether each defendant actually stabbed Gomez. However, there was evidence that Amante, Cardenas, and Higuera participated in the attack. Miguel testified that one of the five men he saw the night of the murder (identified repeatedly as Ochoa) stayed on the bridge. As for the others, “they were all just punching. You couldn’t see like one of them. One of them after each time you see him, you know, and hit him once and then another one second hit him again. They were all at the same. Like you couldn’t see there was just—I couldn’t see who—I’m not sure if one of them hit him and the other one not hit him. [¶] Just the first time when Jose was right there with the two guys, the three guys, that’s when they started hitting him. And that’s when the girl, she said ‘stop,’ and the fifth guy came and dropped a knife next to my car and went all the way over by—he didn’t help him or—he—he just—he went there.” Miguel also identified Amante in a photographic lineup as being “one of the ones stabbing the victim.”
At one point during Miguel’s testimony, however, he apparently identified Higuera as the person who stood near the bridge during the attack.
During trial, Amante’s attorney spoke in chambers with the trial court and codefendants’ counsel (but not defendants) about a conversation he had had with the prosecutor. According to Amante’s counsel, the prosecutor had told him that if Amante testified at trial (which he did not ultimately do), the prosecutor “would be prepared to cross-examine him in accordance with the—his theory of the case, which, as I understand it, is that my client was not the stabber and that in fact... it was not that he was not liable for the crime but that he would be pursued, as I took it to be, on an aiding an[d] abetting theory.” Amante’s counsel raised the issue because he felt that he was under a duty to disclose it to codefendants’ counsel. The prosecutor clarified that “I think [Amante’s counsel] described his interpretation of my comments. He took it a certain way, meaning that he wouldn’t be cross-examined as if he were the actual stabber. But I don’t think that was actually said. I think what was said was that I would cross-examine him consistent with my belief, my theory as to what actually occurred in this case and that a reasonable inference would be what [Amante’s counsel] has stated.” In an apparent reference to this conversation, Amante argues that the prosecutor “clearly did not believe” the theory that Amante was an actual stabber, and even “offered to negotiate it away if [defendant] testified.” Substantial evidence supports Amante’s conviction, and the fact that the prosecutor might have focused on a particular theory during cross-examination had Amante taken the stand does not alter our conclusion.
Because there was substantial evidence that Amante, Cardenas, and Higuera participated in the attack on the victim, sufficient evidence supports their first degree murder convictions as actual perpetrators, even though there was no conclusive evidence as to which defendant delivered the fatal blow(s). (People v. Federico (1981) 127 Cal.App.3d 20, 37 [substantial evidence supported murder conviction in trial of two defendants where evidence showed that either one or both men were actual perpetrators].) Even if the issue of who delivered the fatal blow to the victim was not conclusively resolved by the evidence, we agree with respondent that the evidence as to Amante, Cardenas, and Higuera was sufficient to support their convictions under either a straight aiding and abetting theory, or under the natural and probable consequences doctrine. (People v. Jenkins (2000) 22 Cal.4th 900, 1025-1026 [jury may convict defendant of murder where evidence supports finding that defendant was either perpetrator or aider and abettor].)
b. Evidence that defendants aided and abetted murder (straight aiding and abetting liability)
As for a straight aiding and abetting theory, there was evidence that defendants, who were active in the Norteño street gang, armed themselves with knives after hearing what they believed to be Sureño whistles coming from a nearby creek, and then participated in an unprovoked attack that ended with the victim dying of up to 40 stab wounds. It was virtually undisputed that Amante armed himself with a large butcher knife before leaving his apartment to head toward the creek.
Amante argues that there was no substantial evidence that he harbored specific intent to kill for purposes of straight aiding and abetting, because he “did not even have a chance to form discrete intent to assault a specific person” before he arrived at the murder scene. Amante’s argument is based primarily upon an assumption that the evidence conclusively shows that the victim was killed before Amante arrived at the murder scene, and that the evidence demonstrates instead that he simply “went down the path to see what happened afterwards.” Although it was virtually undisputed that Amante arrived at the bridge last (apparently because his pants got stuck on a fence), and there was conflicting evidence about how long he was present at the murder scene before defendants left the area, we disagree with Amante’s characterization of the evidence as showing that he necessarily arrived at the murder scene after the victim had been killed. Miguel gave somewhat conflicting testimony on this point. At one point he testified, “But the third person, when he came last, he just dropped a knife and started going toward them. But at that time when it was—it was kind of over. It was like—it was over. That’s when the girl started to say stop. And they all got—the girls got the guys and the other guy too. They all got together right there. And that’s when they all left right then. They all left pretty fast. [¶] But the fifth person never took the time—he was never there when they were hitting Jose. But when he came back and he was walking next to my car with the other guys and the girls, he had blood on his shirt. That’s why I thought he did something.” (Italics added.) In response to the prosecutor’s next question, Miguel testified that he saw the person who came across the bridge last go down to where the victim was. When asked to describe what the man did at the scene, Miguel testified, “I never—I never saw him like do—they were all—they were all just punching. You couldn’t see like one of them. One of them after each time you see him, you know, and hit him once and then another one second hit him again. They were all the same. Like you couldn’t see there was just—I couldn’t see how—I’m not sure if one of them hit him and the other one not hit him. [¶] Just the first time when Jose was right there with the two guys, the three guys, that’s when they started hitting him. And that’s when the girl, she said ‘stop,’ and the fifth guy came and dropped a knife next to my car and went all the way over by—he didn’t help him or—he—he just—he went there.” (Italics added.)
Miguel later testified that because he saw the person in the red jersey with blood on his shirt, he thought the person in the jersey “really stabbed him. But me—after then, me and my wife got talking, we were just mentioned that when he came last, everybody came so fast. So I don’t know if he really went and do something really fast. But it was really fast because everybody came back too fast toward the apartment when I left.” Miguel also testified that at first there was just fighting, but when he saw the man who dropped a knife (presumably, Amante), “I know something was happening because he was yelling, and after that he just—he [the victim] was so quiet.” Although Miguel’s testimony arguably could have been more clear, the jury could reasonably have concluded that Amante made it to the scene and participated in the attack on the victim.
Ortiz testified that she walked down the bike path to investigate what was going on. She saw defendants (she could not remember exactly who) run up the path toward her, but she did not see Amante at first. Amante and Higuera were the last two people to come up, according to Ortiz. A forensic pathologist testified that the victim’s stab wounds could have been inflicted in less than one minute. A reasonable jury could infer that Amante was down the path long enough to participate in the murder, if only to assist the others. The fact that he did so as an active gang member when he heard what he believed to be the whistle of a rival gang in disputed territory was sufficient to show that he intended to aid and abet the murder of the victim. In short, there was sufficient evidence to show (under an aiding and abetting theory) that Amante had knowledge of the killer’s or killers’ unlawful purpose, and that he had the intent to encourage or bring about the target offense of murder. (Mendoza, supra, 18 Cal.4th at p. 1123.)
Amante also argues that “it is quite unfair to assume the worst intent merely because [he] armed himself when he accompanied the others outside,” and that “[n]ot every case of gang arming (with kitchen knives) for a potential confrontation is a plan to kill.” (Original italics.) In an apparent reference to the fact that he had been stabbed on Cinco de Mayo less than two months before the murder, Amante argues (without citation to the record) that arming himself under the circumstances was reasonable, especially if he intended only to “investigate” or “run someone off.” Assuming that it was even possible to draw competing inferences about Amante’s intent from evidence that he armed himself with a large butcher knife in response to hearing an apparent rival gang whistle outside his apartment, rushing to the area where the whistle was coming from, and heading down the path even after he was delayed at a fence (and thus had time to change his mind about heading to the creek armed with a knife), the inference to be drawn was for the jury to determine. A more reasonable inference, supported by the record, was that Amante (and other defendants) were motivated in part to kill as revenge for the Cinco de Mayo stabbing of Amante. We will not set aside the jury’s verdict where a rational jury could convict Amante of first degree murder under an aiding and abetting theory. (Sanchez, supra, 12 Cal.4th at pp. 31-32.)
This inference is especially appropriate in light of the fact that the jury found true the allegation (as to all four defendants) that the murder met the requirements of the gang-murder special circumstance. (§ 190.2, subd. (a)(22).) Section 190.2, subdivision (a)(22) provides that the jury may find the special circumstance true where “[t]he defendant intentionally killed the victim while the defendant was an active participant in a criminal street gang, as defined in subdivision (f) of Section 186.22, and the murder was carried out to further the activities of the criminal street gang.” (Italics added.) In other words, the jury necessarily found that defendants harbored the intent to kill the victim.
We have focused on the evidence against Amante, because his appellate argument is more developed than those of the other defendants who join in his argument. (Indeed, Higuera offers no specific argument regarding the evidence as to him.) However, there also is sufficient evidence to support Higuera’s and Cardenas’s convictions for first degree murder. Cardenas points to the absence of evidence that he was armed with a knife when he left the apartment and went with the others down the bike path, and argues that this shows there was insufficient evidence that he harbored intent to kill the victim under a straight aiding and abetting theory. However, Miguel testified that he also saw two men hitting and punching the victim. In other words, the fact that Cardenas may not have been armed with a knife does not mean that he did not participate in the attack or intend to kill the victim. In light of the fact that it was virtually undisputed that he traveled to the murder scene with others who were armed with knives in response to what were believed to be rival gang whistles, there was substantial evidence that Cardenas aided and abetted the murder of Gomez.
c. Evidence under natural and probable consequences doctrine
Amante, Cardenas, and Higuera next argue that the evidence does not support their first degree murder convictions under the natural and probable consequences doctrine. The jury was instructed that it could convict a defendant if he was found to have aided and abetted one of five “target crimes” (breach of peace, assault, battery, assault with a deadly weapon, or assault by means of force likely to produce great bodily injury), and that first degree murder was a natural and probable consequence of the target crime. Amante first argues that “the record does not reflect even specific intent or actions to assist others in a discrete target offense,” and that the record showed no more than that he gave his “assistance after the fact.” Again, we disagree with this characterization of the record, because there is substantial evidence that Amante arrived at the murder scene in time to participate in the attack on the victim or assist the other defendants in doing so.
Amante next argues that even assuming there was evidence that he intended to aid and abet in a breach of the peace (one of five possible target crimes), first degree murder was at most a possible, but not a probable, result. Again, this argument is based on what we consider to be a mischaracterization of the evidence presented at trial. It is perhaps theoretically possible that a rational jury could conclude that a Norteño gang member armed himself with a knife after hearing a rival gang’s whistle and left his apartment with other armed gang members simply to “check[] things out,” resulting in “a chance encounter,” and that the murder that followed happened “to the chagrin or at least surprise of several other persons.” The more reasonable inference, supported by the jury’s verdict, is that Amante (as well as other defendants) aided and abetted in any one of the five target offenses, and that murder was the natural and probable consequence of the attack.
See discussion, ante, footnote 13. A natural and probable consequence is one that is reasonably foreseeable (within the normal range of outcomes reasonably expected to occur and likely to happen). (People v. Medina (2009) 46 Cal.4th 913, 920 [consequence need not have been a strong probability; “ ‘ “possible consequence which might reasonably have been contemplated is enough” ’ ”]; see also People v. Nguyen, supra, 21 Cal.App.4th at p. 530 [crime need not be “substantially certain to result” in order to be reasonably foreseeable].)
Finally, Amante argues that “a finding of premeditated murder as a ‘probable’ result from [defendant]’s perspective strains inference to the breaking point of speculation,” because a premeditated killing by the “actual killer” was not foreseeable here. (Original italics.) Although Amante does not specifically refer to the factors set forth in People v. Anderson (1968) 70 Cal.2d 15 to evaluate whether the murder was premeditated, he appears to argue that the evidence here fell short of what was required under the Anderson tripartite test to show premeditation on the part of any defendant. “[T]he tripartite test of People v. Anderson[, supra,] 70 Cal.2d 15, [used] in deciding whether the evidence is sufficient to support a finding of premeditation and deliberation[, is] based on these three factors: (1) planning activity; (2) motive (established by a prior relationship and/or conduct with the victim); and (3) manner of killing. [Citations.] ‘[T]his court sustains verdicts of first degree murder typically when there is evidence of all three types and otherwise requires at least extremely strong evidence of (1) or evidence of (2) in conjunction with either (1) or (3).’ [Citation.]” (Sanchez, supra, 12 Cal.4th at p. 32.) “[T]he Anderson factors do not establish normative rules, but instead provide guidelines for our analysis.” (Ibid.) “Unreflective reliance on Anderson for a definition of premeditation is inappropriate. The Anderson analysis was intended as a framework to assist reviewing courts in assessing whether the evidence supports an inference that the killing resulted from preexisting reflection and weighing of considerations. It did not refashion the elements of first degree murder or alter the substantive law in any way.” (People v. Thomas (1992) 2 Cal.4th 489, 517.)
Contrary to Amante’s assertion, a review of the record reveals evidence of planning activity. Gang members in Amante’s apartment armed themselves with knives in response to hearing “Scraps” in the area before leaving the apartment complex to confront the victim. Planning activity that takes place over a short period of time is sufficient to find premeditation. (Sanchez, supra, 12 Cal.4th at p. 34 [deliberation shown where man struck his father in kitchen, then left to get a kitchen knife to carry out plan to kill him].) “ ‘ “ ‘The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly.’ [Citations.]” ’ [Citation.]” (People v. Young, supra, 34 Cal.4th at p. 1182.)
There also was substantial evidence of a gang-related motive, as witnesses testified that Amante had recently been stabbed in a gang-related attack, and defendants left the apartment after hearing a “Scraps” whistle coming from disputed territory. (People v. Francisco, supra, 22 Cal.App.4th at pp. 1191-1192 [first degree murder during gang-oriented shooting was reasonably foreseeable].) Contrary to Amante’s assertion, the manner of killing also was indicative of premeditation. With the number of stab wounds inflicted, “the inference could be made that the [stabber] was intent on inflicting death.” (Id. at p. 1192.)
First degree premeditated and deliberate murder was reasonably foreseeable to Amante and the other defendants. Amante armed himself with a butcher knife before proceeding to the creek, where a rival gang whistle had been heard. Before leaving Amante’s apartment, the other defendants ran to Amante’s kitchen, where drawers were opened and metal was heard banging. Although no witnesses specifically testified that they saw Higuera or Cardenas in possession of knives on the night of the murder, it may reasonably be inferred that all defendants armed themselves. All were aware of the recent stabbing of Amante by a rival gang member. Substantial evidence supports defendants’ convictions under the natural and probable consequences doctrine.
See discussion, ante, footnote 4.
4. Voluntary intoxication: instructions and argument
Amante, Cardenas, and Higuera challenge the jury instructions regarding voluntary intoxication, arguing that the instructions misled the jury on whether evidence of intoxication could be considered under the natural and probable consequences doctrine. Section 22, subdivision (a) provides that “[n]o act committed by a person while in a state of voluntary intoxication is less criminal by reason of his or her having been in that condition. Evidence of voluntary intoxication shall not be admitted to negate the capacity to form any mental states for the crimes charged, including, but not limited to, purpose, intent, knowledge, premeditation, deliberation, or malice aforethought, with which the accused committed the act.” Section 22, subdivision (b) sets forth an exception to the rule, providing that “[e]vidence of voluntary intoxication is admissible solely on the issue of whether or not the defendant actually formed a required specific intent, or, when charged with murder, whether the defendant premeditated, deliberated, or harbored express malice aforethought.”
In Mendoza, supra, 18 Cal.4th 1114, our Supreme Court considered whether section 22 permits defendants accused of aiding and abetting to present evidence of intoxication on the question of whether they had the requisite mental states of knowledge and intent. (Mendoza at p. 1126.) The court held that “[t]he mental state required for an aider and abettor is the same for all crimes and is independent of the perpetrator’s mental state. The aider and abettor must specifically intend to aid the perpetrator, whether the intended crime itself requires a general or specific intent on the part of the perpetrator.” (Id. at p. 1132, italics added.) Accordingly, defendants “may present evidence of intoxication solely on the question whether they are liable for criminal acts as aiders and abettors. Once a jury finds a defendant did knowingly and intentionally aid and abet a criminal act, intoxication evidence is irrelevant to the extent of the criminal liability. A person who knowingly aids and abets criminal conduct is guilty of not only the intended crime but also of any other crime the perpetrator actually commits that is a natural and probable consequence of the intended crime. The latter question is not whether the aider and abettor actually foresaw the additional crime, but whether, judged objectively, it was reasonably foreseeable. [Citation.] Intoxication is irrelevant in deciding what is reasonably foreseeable.” (Id. at p. 1133, original italics.)
Consistent with Mendoza, the trial court here instructed the jury, apparently without objection, with CALJIC No. 4.21.2, which provided: “In deciding whether a defendant is guilty as an aider and abettor, you may consider evidence of voluntary intoxication in determining whether a defendant tried as an aider and abettor had the required mental state. However, intoxication evidence is irrelevant on the question whether a charged crime was a natural and probable consequence of the target crime.” (Italics added.) Jurors elsewhere were instructed with CALJIC No. 4.21.1, which provided (as modified): “It is the general rule that no act committed by a person while in a state of voluntary intoxication is less criminal by reason of that condition. [¶] Thus, in the crimes of Second Degree Murder with Implied Malice, Breach of Peace, Assault, Battery, Assault with Deadly Weapon, Assault by Means of Force Likely to Produce Great Bodily Injury, the fact that the defendant was voluntarily intoxicated is not a defense and does not relieve defendant of responsibility for the crime. This rule applies in this case only to the crimes of Second Degree Murder with Implied Malice, Breach of Peace, Assault, Battery, Assault with Deadly Weapon, Assault by Means of Force Likely to Produce Great Bodily Injury. [¶] However, there is an exception to this general rule, namely, where a specific intent is an essential element of a crime or allegation. In that event, you should consider the defendant’s voluntary intoxication in deciding whether the defendant possessed the required specific intent at the time of the commission of the alleged crime. [¶] Thus, in the crimes of First Degree Murder, Second Degree Murder with Express Malice, Accessory, Gang Allegation, and Gang Special Circumstance, a necessary element is the existence in the mind of the defendant of certain specific intents which is included in the definition of the crimes set forth elsewhere in these instructions. [¶] If the evidence shows that a defendant was intoxicated at the time of the alleged crime, you should consider that fact in deciding whether or not that defendant had the required specific intent. [¶] If from all the evidence you have a reasonable doubt whether a defendant had the required specific intent, you must find that defendant did not have that specific intent.” (Italics added.) Jurors were also instructed with CALJIC Nos. 4.21 [jurors could consider evidence of intoxication in determining whether defendants had the required specific intent to commit various specific intent crimes] and 4.22 [definition of voluntary intoxication].
Higuera’s counsel requested that CALJIC No. 4.21.2 be given.
The required mental state was elsewhere defined as having the intent or purpose of encouraging or facilitating the crime.
None of these crimes was charged in the information; instead, with the exception of second degree murder, they were target crimes for purposes of the natural and probable consequences doctrine.
Amante, Cardenas, and Higuera argue for the first time on appeal that the jury instructions and the prosecutor’s argument “wrongly indicated [that] intoxication was not relevant to intent to aid and abet lesser target crimes, denying [defendants] due process of law, a fair trial, [their] right to present a defense, and [their] right to a jury determination on all issues.” They claim that although the trial court instructed jurors that they could consider voluntary intoxication when determining whether defendants were guilty as aiders and abettors, the instructions were prejudicially deficient with respect to the natural and probable consequences doctrine because they “repeatedly term the lesser target offenses as general intent crimes and state intoxication is not a defense to them.” They also argue that the jurors could have interpreted the instructions to allow consideration of the effect of intoxication as to straight aiding and abetting, but not as to the natural and probable consequences doctrine, and that the “prosecutor’s arguments certainly suggested as much.” We disagree.
We agree with respondent that this issue was forfeited by failure to raise it below. (People v. Rundle (2008) 43 Cal.4th 76, 148, disapproved on another ground in People v. Doolin, supra, 45 Cal.4th at p. 421 & fn. 22.) Amante, Cardenas, and Higuera argue in the alternative that if their trial counsel failed to preserve the issue, they received ineffective assistance of counsel. Because we address the alleged deficiencies in the jury instructions and related argument by the prosecutor on the merits and reject the claim of error, we reject the ineffective assistance of counsel claim. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 108.)
Jurors were instructed that in order to find defendants guilty under the natural and probable consequences doctrine, they first had to find beyond a reasonable doubt that one of five target crimes (defined as general intent crimes for which intoxication was not a defense) was committed. They were instructed that they next had to find that defendant aided and abetted one of those (general intent) target crimes. Jurors were elsewhere instructed that they could consider evidence of voluntary intoxication in determining whether a defendant tried as an aider and abettor had the required mental state (i.e., that he acted with the intent or purpose of committing or encouraging or facilitating the commission of the crime). In other words, although jurors were told that intoxication was not a defense to the target crimes themselves, they were correctly informed that intoxication was a potential defense to aiding and abetting one of those crimes, consistent with Mendoza, supra, 18 Cal.4th 1114. In sum, we disagree with Amante’s argument that greater care was needed to ensure that the jury understood that intoxication applied to the natural and probable consequences doctrine.
We also reject defendants’ contention that the prosecutor’s closing argument misstated the relevance of intoxication evidence. The prosecutor stated that jurors could consider intoxication on the issue of whether Amante (who was described as drunk on the night of the murder) had the intent to kill the victim. He also argued, without objection: “Target crimes in this case are general intent crimes. That’s different than specific intent; breach of p[eace], assault battery; assault by means of force likely. That just means it’s a serious assault likely to produce bodily injury or assault with a weapon. [¶] So if Pete Amante was drunk that night and he aided and abetted in one of these target crimes, what does that mean? Does that mean that Pete Amante is not guilty of murder? [¶] If the murder was a natural and probable consequence[] of one of those five target crimes, and you find that Pete Amante aided and abetted in one of those five target crimes which are general intent crimes, not specific intent crimes, then it doesn’t matter that he was drunk. He’s still guilty of motive. [¶] If you find he aided and abetted in each assault and battery as a person who was voluntarily intoxicated, and if you find that somebody else in his group of aider and abettors committed a murder which was a[] natural and probable consequence[] of that target crime, his intoxication is not a defense. He is guilty. [¶] The same is true for each of the other defendants. To the extent that any of these defendants aided and abetted in any target crime as an intoxicated person, it matters not so long as the murder committed by one or more of them was a natural and probable consequence of that target crime. Does that make sense to you? They don’t have to have [the] specific intent to kill to be found guilty of murder.”
That defendants did not have to have the specific intent to kill to be found guilty of murder under the natural and probable consequences doctrine was a correct statement of the law. The prosecutor also emphasized that intoxication was not relevant to the determination of whether murder was the natural and probable consequence of the target crimes, which also was a correct statement of law. (Mendoza, supra, 18 Cal.4th at p. 1133.) The prosecutor also stated that the jury had to find that defendants aided and abetted the target crime in order for the natural and probable consequences doctrine to apply. The prosecutor correctly indicated that the target crimes were general intent crimes, as to which voluntary intoxication is not a defense. However, in order to have aided and abetted those crimes, a defendant must have had the specific intent that the target offense be committed, and voluntary intoxication is relevant to that issue. The prosecutor did not delineate that specific interplay of intoxication and intent. The jury instructions did, however. The instructions informed the jury that it had to find that defendants acted with the intent to encourage or facilitate the commission of the crime in order to aid and abet the crime, and that intoxication was relevant to that determination. There was no reasonable likelihood that the jury misunderstood the instructions regarding intoxication, notwithstanding the prosecutor’s closing argument.
B. Issues Relating to Gang Allegations.
Defendants have raised several issues regarding the gang enhancement and gang special circumstance. To support the gang enhancement, the prosecutor was required to prove that the victim’s murder 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).) The special circumstance required proof that a defendant intentionally killed the victim while he was an active participant in a criminal street gang, and that “the murder was carried out to further the activities of the criminal street gang.” (§ 190.2, subd. (a)(22).) For purposes of both the gang enhancement and the special circumstance, a criminal street gang is defined as “any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more [enumerated criminal acts], having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.” (§§ 186.22, subd. (f), 190.2, subd. (a)(22).) A gang engages in a “ ‘pattern of criminal gang activity’ ” when its members participate in two or more specified criminal offenses (predicate offenses) committed within a certain time frame and “on separate occasions, or by two or more persons.” (§ 186.22, subd. (e); People v. Gardeley (1996) 14 Cal.4th 605, 610, fn. 1 [“ ‘predicate offenses’ ” refers to crimes that constitute “ ‘pattern of criminal gang activity’ ”].) The prosecution may present expert testimony on criminal street gangs in order to prove the elements of the gang allegations. (People v. Hernandez (2004) 33 Cal.4th 1040, 1047-1048 (Hernandez); People v. Gardeley, supra, at pp. 617-620.)
We address defendants’ various arguments regarding the gang allegations in turn.
1. Evidence supporting gang allegations
Amante, Cardenas, and Higuera argue that there is insufficient evidence to support the gang findings, a claim we review for substantial evidence. (People v. Leon (2008) 161 Cal.App.4th 149, 161.)
As with the argument about the evidence supporting the murder convictions (ante, fn. 23), Higuera simply joins in Amante’s argument that there was insufficient evidence to support the gang allegations, without focusing on the evidence specific to him. Although we therefore do not address in detail the evidence as to Higuera, a review of the entire record reveals sufficient evidence to support a true finding as to the gang allegations against him. Higuera’s attorney acknowledged during closing arguments to the jury that “[y]es, my client is a Norteño gang member.”
Robert Scott, a Santa Rosa police officer, testified as an expert in criminal street gangs. After describing his training and experience with gangs in Sonoma County, Scott testified about the Norteño street gang in the county. Scott described the territory claimed by the gang (roughly, Northern California, with the “demarcation line” being a town near Bakersfield); the graffiti, signs, and symbols used by the gang; and the “philosophy” of various gang members. Norteños identify with the Roman numeral XIV and the number 14, and they claim the color red, according to Scott. About 1,400 people claim Norteño gang membership or affiliation in Sonoma County. Scott testified about some of the “primary activities” (§ 186.22, subd. (f)) of the Norteño street gang and opined that it was an active street gang, as defined in section 186.22. Scott also opined, based on defendants’ personal admissions, his own review of police reports, and other factors, that defendants were members of the Norteño gang on the day of the murder, and that they were active participants in that gang. He testified that “the greatest thing that [a Norteño gang member] can do is go to battle and defeat their enemy, a Sureño gang member, in battle. Whether that’s in the form of stabbing them, shooting them, beating them with baseball bats, whatever that might be, that generally, from my discussions with them, is what will gain them the most respect.” He also testified that “in talking with Norteño gang members, they regularly tell me that they consider themselves to be in constant conflict with their rival Sureño gang members. And if the opportunity arises where they have sufficient numbers or the opportunity to take advantage of that situation and attack their rivals, they do.”
Amante first argues that there was insufficient evidence that the Norteños were a cognizable street gang. As he acknowledges, this argument previously has been rejected. (People v. Ortega (2006) 145 Cal.App.4th 1344, 1355-1357 (Ortega) [proof that Norteños qualify as criminal street gang sufficient; no need to identify particular local subset involved in crime].) People v. Valdez (1997) 58 Cal.App.4th 494, upon which Amante relies, “does not hold that there is no criminal street gang called Norteno.” (In re Jose P. (2003) 106 Cal.App.4th 458, 467.) As in Ortega, sufficient evidence was presented to establish every element of the existence of the Norteños as a criminal street gang. (Ortega, supra, 145 Cal.App.4th at p. 1356.)
Scott testified, without objection, about predicate offenses committed by five Norteño gang members (other than defendants) to establish a “ ‘pattern of criminal gang activity’ ” (§ 186.22, subd. (e)). Three of the gang members were convicted of various offenses (including murder and attempted murder) in connection with two separate incidents that took place in Cloverdale. Amante argues for the first time on appeal that it was unfair to “impute crimes from other towns under the diffuse Norteno umbrella to ensure gang findings.” Although he does not explain why it was unfair to admit testimony about predicate offenses that occurred in the same county where he resided, presumably Amante means that activities that took place in Cloverdale could not be attributable to a gang as far away as Santa Rosa (although he does not say how far away Cloverdale is or cite any relevant authority to support his argument). We reject his contention. Scott testified that about 1,400 people claim Norteño gang membership or affiliation in Sonoma County, and that in his experience, various “subsets” of the Norteño gang in the county “all work together under the umbrella of the Norteño criminal street gang.” He also testified that Cardenas had been contacted by police several times in Cloverdale while in the company of gang members, including one who was later convicted of committing murder in that town. In light of all this testimony, we see nothing inherently unfair about admitting evidence of predicate offenses that took place in Cloverdale.
To the extent that Amante argues that there was insufficient proof that he “intentionally killed” (§ 190.2, subd. (a)(22)) the victim for purposes of the gang-murder special circumstance because it was not proven that he was the actual killer (as opposed to an aider and abettor), this argument was recently rejected in People v. Ybarra (2008) 166 Cal.App.4th 1069, 1085-1086. As the Ybarra court noted (id. at p. 1086), the authorizing statute addresses aiders and abettors: “Every person, not the actual killer, who, with the intent to kill, aids, abets, counsels, commands, induces, solicits, requests, or assists any actor in the commission of murder in the first degree shall be punished by death or imprisonment in the state prison for life without the possibility of parole if one or more of the special circumstances enumerated in subdivision (a) has been found to be true under Section 190.4.” (§ 190.2, subd. (c), italics added.) This is consistent with the instruction provided to the jury here (CALJIC No. 8.80.1), that if jurors found that a defendant was not an actual killer, they could not find the special circumstance to be true unless they were “satisfied beyond a reasonable doubt that such defendant with the intent to kill aided, abetted, counseled, commanded, induced, solicited, requested, or assisted any actor in the commission of the murder in the first degree.” Because substantial evidence supports this finding, as set forth above, we will not set it aside.
Finally, we reject Amante’s and Cardenas’s arguments that there was insufficient evidence that they were active participants in the Norteño gang at the time of the murder. (§ 190.2, subd. (a)(22).) As to Amante, the jury was shown a photograph of Amante with the number 14 (a number associated with Norteños) tattooed on his chest, a photograph of the letters “VSRN” (for the Varrio Santa Rosa Norte subset of the Norteño street gang) tattooed on his stomach, and a photograph of him with known gang members and holding a red bandana (a color of clothing associated with Norteños). Scott testified that Amante’s gang moniker was “Whacky,” and that Amante had told him in August 1997 that he was an active gang member and had been “jumped in” (a slang term for being initiated into) the gang at the age of 16. Scott testified about various times that Amante had been contacted by gang enforcement team officers while wearing clothing typical of Norteño gang members and associating with known gang members who had committed various crimes (including murder), and that Amante had admitted to being a gang member. On May 5, 2001, Amante was seen “throwing up gang hand signs,” which is a way for a gang member to show gang affiliation as well as to challenge rival gang members. Amante was seen at a party attended by about 30 known Norteño gang members on Cinco de Mayo 2002, just weeks before the murder. Later that same day, Amante was stabbed after a large group of Sureño members was seen going toward him in what was presumably a gang-related attack.
Amante notes that Santa Rosa police officer Rainer Navarro testified that Amante had told him that he wanted to leave the gang lifestyle, and Amante was in the process of having gang tattoos removed a few weeks before the murder. However, Officer Scott explained that sometimes gang members are unsuccessful in their efforts to leave a gang, or members mislead officers about their efforts to leave a gang so that the police will not bother them. Moreover, Officer Navarro testified that he saw Amante around the time he was having his tattoos removed, and Amante was still wearing gang colors and a shirt that said “Norte XIV VSRN Santa Rosa.” Navarro reprimanded Amante for making himself a target for rival gang members. Amante told Navarro that “it was hard to stay away and he [Amante] was out with his friends wanting to have a good time.” A man who described himself as a good friend of Amante’s likewise testified that he saw Amante two to three times a week through June 2002 (the month of the murder), and that they associated with Norteño gang members together. Given all the evidence about Amante’s gang activity, there was substantial evidence that Amante was an active gang member on the date of the murder.
As for Cardenas, the jury was shown pictures of him with gang-related tattoos on his arms. Scott testified about times Cardenas had been contacted by police while in the company of known gang members, including in September, October, and November 1999. On one of those occasions (in November 1999), Cardenas denied being a Norteño gang member (although he was wearing red clothing consistent with being a Norteño), but he admitted that his brother was a Norteño gang member. Scott testified, over Cardenas’s relevance and Evidence Code section 352 objections, that Cardenas’s brother was “a known Norteño gang member who has been involved in Norteño criminal street gang activity.” Scott also testified, over Cardenas’s lack of foundation objection, that in December 1999, Cardenas’s brother was arrested, and that police took photographs inside the residence showing red clothing and hats typically worn by Norteño gang members. Scott explained that the younger siblings of gang members tend to learn more about gangs at a younger age than other children and want to emulate their older family members. In February 2000, Cardenas admitted to a police detective that he had previously lied about not being a gang member, and that he had been “jumped in” about one year earlier. Cardenas was contacted by police in the company of known gang members two times in July 2001; Cardenas was wearing gang clothing and again admitted he was a gang member.
The photographs were admitted at trial.
Contrary to Cardenas’s argument on appeal, we do not consider Scott’s opinion on Cardenas’s status as an active gang member on the day of the murder to be “conclusory.” We likewise disagree with his assertion that “[m]ost” of the gang expert’s testimony about Cardenas’s gang membership related to his family, as opposed to him, because there was additional evidence presented (including admissions) specific to Cardenas. The testimony about Cardenas’s brother was relevant because it demonstrated Cardenas’s early familiarity with the gang lifestyle. It is a vast overstatement to argue, as Cardenas does in his opening brief, that “there was no evidence that [defendant] was a Norteno member at the time of the crime or that he had been a Norteno member any time during the previous year.” (Italics added.) Although Scott did not testify about other gang-related incidents involving Cardenas in the year before the murder, there was likewise no evidence that Cardenas had left the gang after admitting to being a Norteño. In fact, Scott testified that he was relying on the murder itself—during which a group of men grabbed knives to run in the direction of a “Scrap” after hearing a whistle associated with the rival Sureños gang—in considering whether Cardenas was an active gang member at the time of the murder. We see no reason to set aside the jury’s findings on the gang allegations in light of the substantial evidence that Cardenas was an admitted Norteño gang member and acted consistently with being a gang member on the night of the murder.
Cardenas is the youngest of the four defendants, and he was only 16 at the time of the murder. It is therefore not entirely surprising that there was less evidence as to his gang affiliation than there was regarding Amante, Higuera, and Lopez.
2. Expert testimony
Defendants argue that Scott “erroneously testified to ultimate fact issues and offered other unfounded testimony, denying [defendants] due process of law, a fair trial, and a jury determination on all issues.” A person with “special knowledge, skill, experience, training, or education” in a particular field is qualified to testify as an expert. (Evid. Code, § 720, subd. (a).) Expert testimony regarding the culture and habits of criminal street gangs is permissible, because these subjects are “sufficiently beyond common experience that the opinion of an expert would assist the trier of fact” (Evid. Code, § 801, subd. (a)). (People v. Gardeley, supra, 14 Cal.4th at p. 617.) We review the trial court’s admission of expert testimony for abuse of discretion (People v. Ward (2005) 36 Cal.4th 186, 210; People v. Valdez, supra, 58 Cal.App.4th at p. 506) and find no abuse of discretion.
The prosecutor asked Scott the following hypothetical question: “First of all, I would like you to assume that there was a person that was wearing mostly blue clothing including a blue beanie with ‘SUR’ on the forehead, blue sweatshirt; that that person was alone on a bike, young Hispanic male adult, in the area of Stony Point Road and the Santa Rosa Creek— [¶]... [¶] —in the early morning of June 27, 2002; and that he whistled in the style that some people associate with Sureño members and that others whistled in that same style as well; and that these five defendants were close enough to hear those whistles in the vicinity of the creek and that when the whistles were heard that one or more of them talked about Scraps being out by the creek; and that shortly thereafter, all five left the apartment where they had been when they heard that; that one or more grabbed knives from the apartment and headed across the bridge on Stony Point to the north side of the creek; and that one of them as they passed stated to a citizen standing nearby words to the effect of, ‘Do you gang— []Do you bang Norte?’; and that very shortly thereafter, the person that we described as the Hispanic male, young Hispanic male, was stabbed to death approximately 40 times. [¶] Do you have an opinion about whether that crime was committed for the benefit of or in association with a criminal street gang?” Scott testified that it was his opinion that such a crime would be committed for the benefit of or in association with a criminal street gang, because (1) the victim’s clothing was consistent with clothes worn by Sureño gang members, (2) grabbing weapons before leaving an apartment was consistent with people preparing for a confrontation, (3) asking an “uninvolved citizen” whether he “bang[s] Norte” was consistent with someone looking for a confrontation, (4) stabbing the victim 40 times was consistent with assaulting a rival gang member, and (5) the killing showed the gang’s power, instilled fear in members of the community, and promoted recruitment by showing how powerful the gang was.
Scott next testified (over Higuera’s speculation objection) that in a gang attack such as the one described in the prosecutor’s hypothetical, gang members would play different roles. He testified that, based on his training and experience, “when an assault occurs, the gang members are expected to participate if they are in the area of that assault. To not participate could in fact cause retribution to be brought upon them.”
Although it is true that an expert is not permitted to testify about a defendant’s subjective knowledge and intent (People v. Killebrew (2002) 103 Cal.App.4th 644, 658), we disagree with Amante’s argument that the testimony cited above went to Amante’s (or any other defendant’s) “ultimate mental states and other ultimate fact/guilt issues.” A similar argument was considered, and rejected, by our Supreme Court in People v. Ward, supra, 36 Cal.4th 186. In Ward, defendant argued that because two gang experts answered fact-specific hypothetical questions, their answers were impermissible opinions about defendant’s intent. (Id. at p. 209.) The court concluded, as we do here, that “[t]he expert[] did not render an impermissible opinion as to defendant[s’] actual intent; rather, [he] properly testified as to defendant[s’] motivations for [their] actions.” (Ibid.) Although his argument is somewhat unclear, Amante apparently reasons that because the hypothetical question posed to Scott referred to “ ‘these five defendants’ ” taking various actions and questioned whether “that crime” was committed for the benefit of a street gang, it was not a proper hypothetical question because it focused on the specific defendants (as opposed to hypothetical gang members). Although it is true, as Amante argues, that “there is a difference between testifying about specific persons and about hypothetical persons” (People v. Gonzalez (2006) 38 Cal.4th 932, 946, fn. 3), we do not believe that the question posed to Scott was improper. “ ‘Generally, an expert may render opinion testimony on the basis of facts given “in a hypothetical question that asks the expert to assume their truth.” ’ ” (Id. at p. 946.) Here, Scott did not offer an opinion as to whether any particular defendant committed the charged murder for the benefit of the Norteño street gang. Instead, he repeatedly referred to “the hypothetical” posed by the prosecutor when providing his opinion that the crime described was committed for the benefit of a street gang. (Italics added.) Although the prosecutor’s question might have been phrased more carefully to omit references to “these five defendants” and “that crime,” it is clear that the question was a hypothetical one, and that Scott was not being asked to opine about defendants’ particular mental states at the time of the crime.
We agree with respondent that defendants waived this issue by not objecting below to the challenged responses to hypothetical questions on the grounds raised on appeal. (People v. Ward, supra, 36 Cal.4th at p. 211 [objection to expert testimony forfeited where defendant failed to object on same basis at trial].) Defendants argue in the alternative that if their trial attorneys failed to preserve the issue for appellate review, they received ineffective assistance of counsel. Because we conclude on the merits that the trial court did not err in admitting the challenged expert testimony, defendants cannot demonstrate that they were prejudiced by any failure to preserve the issue for appellate review. (Strickland v. Washington (1984) 466 U.S. 668, 687.)
For this reason, People v. Killebrew, supra, 103 Cal.App.4th 644, upon which Amante relies, is distinguishable. There, the gang expert specifically “informed the jury of his belief of the suspects’ knowledge and intent on the night in question” (id. at p. 658, italics added), something that Scott did not do here. Scott likewise did not describe the roles of accomplices in the area of the attack on the night of the murder, as Amante repeatedly suggests. Instead, he testified that, based on his training and experience, Norteño gang members generally are expected to participate in an assault if they are in an area where one occurs.
We note that “ ‘[t]here is no hard and fast rule that the expert cannot be asked a question that coincides with the ultimate issue in the case.’ ” (People v. Valdez, supra, 58 Cal.App.4th at p. 507 [no error to permit expert testimony regarding whether defendant acted for benefit of street gang, an ultimate factual issue for jury to decide]; People v. Garcia (2007) 153 Cal.App.4th 1499, 1513-1514 [permissible for expert to testify, in response to hypothetical question, that a crime under circumstances described was committed for benefit of street gang, the ultimate issue of case].) Here, Scott’s testimony about why gang members would be motivated to murder someone they heard whistling nearby was “sufficiently beyond common experience that the opinion of an expert would assist the trier of fact” (Evid. Code, § 801, subd. (a)) and “was not tantamount to expressing an opinion as to defendant[s’] guilt.” (People v. Ward, supra, 36 Cal.4th at p. 210.)
Amante also argues that Scott’s testimony “lacked foundation in the qualifications of the officer to offer the opinions this specific” and that Scott “simply had no expertise for testifying to specific persons’ motives, specific persons’ likely participation in an assault if they were in ‘the area,’ or the credibility of [defendant]’s or others[’] attempts to get out of the gang.” This argument mischaracterizes Scott’s testimony, because Scott did not testify about any specific defendant’s motives or guilt. To the extent that Amante argues that Scott lacked the necessary qualifications to testify as an expert, we reject that argument. Scott testified at length about the bases for his opinions, including his hundreds of hours of formal and informal training in criminal street gangs, monthly meetings with a multiagency gang enforcement team, conversations with Norteño gang members, investigations of more than 100 gang-related crimes, and personal observations.
We note that in the section of his brief devoted to this argument, Amante makes only vague and general references to Scott’s testimony, without specific citations to the record. (Cf. Cal. Rules of Court, rule 8.204(a)(1)(C) [factual references in appellate briefs must be supported by citation to the record].) We find that he oversimplifies various passages of Scott’s testimony. For example, he claims, without citation to the record, that Scott offered “direct opinions and sweeping explanations about all members’ active participation and lies about getting out.” Scott testified that, based on his investigations of crimes and interviews with gang members, there are times when gang members are truthful that they are trying to get out of gangs, but that there are also times when members’ efforts to get out of gangs are unsuccessful, or members mislead law enforcement officers so that officers will leave them alone. Although he testified that he had heard that Amante was trying to “leave the gang lifestyle,” he offered no opinion as to whether he believed Amante was lying about his stated intentions.
Cardenas argues that the erroneous admission of Scott’s testimony regarding “ultimate fact issues” was particularly prejudicial to him, because the gang evidence against him rested in large part on his family members’ gang connections. As set forth above (§ II.B.1), there was substantial evidence, independent of evidence regarding Cardenas’s brother (a known Norteño gang member), that Cardenas himself was an active gang member at the time of the murder. The trial court did not abuse its discretion in admitting the brief additional testimony regarding Cardenas’s sibling, because the testimony shed light on the culture and habits of criminal street gangs. (People v. Gardeley, supra, 14 Cal.4th at p. 617.) In short, we reject defendants’ arguments that the trial court erred in admitting the gang expert’s testimony.
3. Limiting instructions
a. Background
Defendants also challenge the trial court’s instruction limiting the purposes for which gang evidence might be considered. To understand their argument, it is helpful to explain how the trial court limited the admission of gang evidence. The prosecutor and defendants’ attorneys disputed whether it was proper for the gang expert to testify as to various “gang contacts” by defendants as the basis for his expert opinion. The trial court issued a detailed ruling on the admissibility of such contacts, limiting the amount of inadmissible hearsay upon which the expert would be permitted to rely. Because the court believed that the probative value of evidence of defendants’ prior arrests and certain bad acts would be outweighed by the risk that the jury might improperly consider the evidence, it limited the evidence upon which the expert could testify to “less prejudicial aspects of these gang contacts such as self-admissions, gang clothing, associating with other gang members, frequenting gang areas, gang tattoos, flashing gang signs, possession of gang paraphernalia, and making gang comments.”
Scott testified regarding foundational requirements for both the gang enhancement (§ 186.22, subd. (b)(1)) and the special circumstance (§ 190.2, subd. (a)(22)). In this regard, Scott detailed certain prior offenses by Norteño members other than the defendants, in order to support his expert opinion that the Norteños had engaged in the requisite predicate offenses to demonstrate a “ ‘pattern of criminal gang activity.’ ” (§ 186.22, subd. (e).)
During discussion regarding jury instructions, Higuera’s and Lopez’s counsel objected to CALJIC No. 2.50 (evidence of other crimes) being used as a limiting instruction on the gang evidence, arguing that the instruction appeared directed at situations where, unlike here, evidence of other crimes committed by a defendant had been admitted. Higuera’s counsel proposed that the jury be instructed that evidence of defendants’ contact with law enforcement was introduced only as a foundation for the gang expert’s opinion, and could not be considered to prove guilt for the charged offenses or to prove that defendants aided and abetted the commission of the charged crime. Citing Hernandez, supra, 33 Cal.4th at page 1049, which noted that “evidence of gang membership is often relevant to, and admissible regarding, the charged offense,” the trial court ruled that it would give CALJIC No. 2.50. Higuera’s proposed instruction was not given.
As modified here, CALJIC No. 2.50 was given to the jury as follows: “Evidence has been introduced for the purpose of showing criminal street gang activities, and of criminal acts by gang members, other than the crimes for which defendants are on trial. [¶] Except as you will otherwise be instructed, this evidence, if believed, may not be considered by you to prove that any defendant is a person of bad character or that he has a disposition to commit crimes. It may be considered by you only for the limited purpose of determining if it tends to show: [¶] The existence of the intent which is a necessary element of the crime charged; [¶] A motive for the commission of the crime charged; [¶] The defendant had knowledge or possessed the means that might have been useful or necessary for the commission of the crime charged; [¶] That the crime or crimes charged were committed for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members. [¶] For the limited purpose for which you may consider such evidence, you must weigh it in the same manner as you do all other evidence in the case. You are not permitted to consider such evidence for any other purpose.” Optional bracketed language in CALJIC No. 2.50 regarding evidence that “defendant committed [a crime] [crimes] other than that for which [he] [she is on trial],” was omitted.
b. Analysis
In Hernandez, supra, 33 Cal.4th 1040, our Supreme Court concluded that the trial court did not abuse its discretion in declining to bifurcate the trial of a criminal street gang enhancement from that of the underlying charged crimes where much of the gang evidence was relevant to the charged offenses. (Id. at pp. 1046, 1050-1051.) It based its conclusion in part on the fact that “evidence of gang membership is often relevant to, and admissible regarding, the charged offense. Evidence of the defendant[s’] gang affiliation—including evidence of the gang’s territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like—can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime.” (Id. at p. 1049.) The court also held that, although the trial court is under no sua sponte duty to give a limiting instruction on gang evidence, it should provide one upon request. (Id. at pp. 1051-1052.)
Amante, Cardenas, and Higuera argue that the trial court erred here in declining to bifurcate the trial on the gang allegations. We address that argument separately below. (Post, § II.B.5.)
Prior to Hernandez, supra, 33 Cal.4th 1040, CALJIC No. 2.50 was directed solely at the consideration of other crimes evidence admitted pursuant to Evidence Code section 1101 (which permits admissibility of character evidence relevant to prove a fact, such as motive or intent, other than a defendant’s disposition to commit the charged crime) and was considered “ ‘a correct statement of the law.’ ” (People v. Wilson (2005) 36 Cal.4th 309, 328, quoting People v. Linkenauger (1995) 32 Cal.App.4th 1603, 1615.) After Hernandez was decided, CALJIC No. 2.50 was modified to add optional language (which was used in this case) regarding the admission of evidence to show criminal street gang activities. (Use Note to CALJIC No. 2.50 (Spring 2009 ed.) p. 74.) A separate instruction, CALJIC No. 17.24.3, is to be used where evidence of criminal street gang activities is relevant only in determining whether a crime 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)), and not in determining any other issues on the substantive charged crime.
The prosecutor repeatedly stressed that he was not seeking to admit the expert’s testimony regarding specific gang contacts pursuant to Evidence Code section 1101 but was instead seeking the admission of the testimony as a foundation for the expert’s opinion. However, on appeal, Amante argues in passing that “expansive descriptions of gang acts” were not admissible under “[Evidence Code] section 1101 similarity theories.” Amante does not point to any particular testimony that he claims was improperly admitted. To the extent that Amante challenges the admissibility of the gang expert’s testimony on the ground that it was improper character evidence, he raises this issue in such a perfunctory way that we reject it in similar fashion. (People v. Jones (1998) 17 Cal.4th 279, 304.)
CALJIC No. 17.24.3 provides: “[Evidence has been introduced for the purpose of showing criminal street gang activities, and of criminal acts by gang members, other than the crimes[s] for which defendant[s] [is] [are] on trial.] [¶] [Except as you will be otherwise instructed, this] [This] evidence, if believed, may not be considered by you to prove that defendant is a person of bad character or that [he] [she] has a disposition to commit crimes. It may be considered by you [only] for the limited purpose of determining if it tends to show that the crime or crimes charged were committed for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members. [¶] For the limited purpose for which you may consider this evidence, you must weigh it in the same manner as you do all other evidence in the case. [¶] [You are not permitted to consider such evidence for any other purpose.]” The trial court rejected defendants’ request to give this instruction in lieu of CALJIC No. 2.50, because the evidence in this case was relevant on issues other than proving the gang enhancement.
Defendants argue that the trial court “committed serious error in giving a combined version of CALJIC No. 2.50 that permitted jurors to consider all gang evidence on all conceivable issues in the case, not just gang enhancement issues, denying [defendants] due process of law, a fair trial, and [their] Sixth Amendment right to confront testimonial hearsay relied upon by the gang expert.” This argument is not supported by a review of the instruction given to the jury, which provided that jurors were to consider gang evidence, not for “all conceivable issues,” but “only for the limited purpose” of determining whether it tended to show intent, motive, knowledge of means useful for commission of the crime, and whether the crimes charged were committed for the benefit of a street gang. (Italics added.) The instruction was consistent with Hernandez, supra, 33 Cal.4th 1040, and did not misstate the purposes for which the jury could consider gang evidence.
We also disagree with Amante’s suggestion that the prosecutor offered improper argument regarding the gang expert’s testimony. He directs us to portions of the prosecutor’s closing argument that highlighted gang evidence, but for which no objection was made. (People v. Bell (1989) 49 Cal.3d 502, 538-539 [defendant waives objection not raised below where counsel arguably misstates law during argument].) Having reviewed the selected portions of the prosecutor’s closing argument, we conclude that they did not misstate the law and were not otherwise improper.
Amante also objects that CALJIC No. 2.50 “did not even specify what evidence was limited to the gang enhancements” and “grossly fail[ed] to specify and segregate the evidence admitted for various purposes.” (Italics omitted.) He does not direct us to anywhere in the record where such a clarifying instruction was proposed. He likewise does not explain on appeal how the jury should have been instructed on this issue, other than to direct this court to CALCRIM Nos. 375 and 1403. He claims that those instructions “probably” would have spared the jury “the worst of the confusion,” because CALCRIM No. 1403 would have directed jurors to consider “gang evidence to prove the enhancement and motive,” and CALCRIM No. 375 would have focused jurors “on what other evidence (e.g., gang membership and rivalries, not third party crimes) was really admissible on other substantive issues.” (Original italics.) To the contrary, CALCRIM No. 1403 does not differ from CALJIC No. 2.50 as given in this case in any material way. As the bench notes to CALCRIM No. 375 explain, that instruction is to be given on request when evidence of other offenses has been introduced pursuant to Evidence Code section 1101, subdivision (b). (Bench Notes to CALCRIM No. 375 (Fall 2008 ed.) p. 133.) The instruction does not distinguish between “gang membership and rivalries” and “third party crimes” as Amante claims; in fact, it does not specifically mention gang evidence. Such an instruction therefore would have been unnecessary here.
CALCRIM No. 375 provides, in relevant part: “[The People presented evidence (of other behavior by the defendant that was not charged in this case/that the defendant ___ <insert description of alleged conduct admitted under Evid. Code, § 1101(b)>).] [¶] You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the (uncharged offense[s]/act[s]). Proof by a preponderance of the evidence is a different burden of proof than proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true. [¶] If the People have not met this burden, you must disregard this evidence entirely. [¶] If you decide that the defendant committed the (uncharged offense[s]/act[s]), you may, but are not required to, consider that evidence for the limited purpose of deciding whether or not: [¶]... [¶] [The defendant acted with the intent to ___ <insert specific intent required to prove the offense[s] alleged> in this case](./; or) [¶]... [¶] [The defendant had a motive to commit the offense[s] alleged in this case](./; or) [¶]... [¶] [The defendant knew ___ <insert knowledge required to prove the offense[s] alleged> when (he/she) allegedly acted in this case](./; or) [¶]... [¶] [The defendant ___ <insert description of other permissible purpose; see Evid. Code, § 1101(b)>.]....”
CALCRIM No. 1403 provides, in relevant part: “You may consider evidence of gang activity only for the limited purpose of deciding whether: [¶] [The defendant acted with the intent, purpose, and knowledge that are required to prove the gang-related (crime[s]/[and] enhancement[s]/[and] special circumstance allegations) charged(;/.)] [¶] [OR] [¶] [The defendant had a motive to commit the crime[s] charged(;/.)] [¶]... [¶] [OR] [¶] [___ <insert other reason court admitted gang evidence>.] [¶]... [¶] You may not consider this evidence for any other purpose. You may not conclude from this evidence that the defendant is a person of bad character or that (he/she) has a disposition to commit crime.”
The jury was correctly instructed on the intent necessary to convict defendants of first degree murder (CALJIC No. 8.20), as well as what must be proved in order to find the gang enhancement true (CALJIC No. 17.24.2; § 186.22, subd. (b)(1)). We reject Amante’s apparent argument that the trial court was obligated to further specify what particular gang evidence was relevant to which finding the jury had to make. People v. Rollo (1977) 20 Cal.3d 109, upon which Amante relies, is distinguishable. In Rollo, the trial court admitted evidence of a prior conviction for impeachment purposes when the defendant testified. (Id. at p. 115.) Our Supreme Court held that it was error (although harmless) for the trial court to instruct the jury with CALJIC No. 2.50, because the instruction improperly suggested that the jury could consider evidence of the prior conviction to determine whether defendant had the intent and knowledge necessary to commit the charged offense. (Rollo, supra, at pp. 122-123.) The court noted that in the future, “in any case in which the court has properly admitted both a prior felony conviction of the defendant for the purpose of impeachment and ‘other crimes’ evidence on a substantive issue, the cautionary instruction on the latter point should identify the evidence to which it relates.” (Id. at p. 123, fn. 6.) Here, defendants did not testify, so there was no confusion over whether evidence was being admitted for impeachment or another purpose. To the extent that the trial court was under a sua sponte obligation to identify in the limiting instruction the evidence to which it related, we believe that the instructions given here were sufficient. The limiting instruction used referred to evidence “introduced for the purpose of showing criminal street gang activities, and of criminal acts by gang members, other than the crimes for which defendants are on trial,” and the jury was elsewhere correctly instructed on the definition of a “criminal street gang” and the elements necessary to find true the gang enhancement (CALJIC No. 17.24.2). Considered together, the jury instructions adequately informed the jury of the limits upon their consideration of this evidence.
Having concluded that the trial court did not err in giving CALJIC No. 2.50 as modified in this case, we now address related issues that Amante raises in passing. Amante notes that “it appears no instructions limiting any expert testimony to basis of opinion were given during testimony or later,” and indicates that such an instruction was requested. We presume this is a reference to an instruction that would have told the jury that hearsay matters upon which the expert based his opinions were admitted only to show the bases of his opinions and not for the truth of the matters asserted. (E.g., People v. Coleman (1985) 38 Cal.3d 69, 92; People v. Valdez, supra, 58 Cal.App.4th at pp. 510-511 & fn. 12.) We agree with Amante that such a limiting instruction was not given here; however, we disagree that one was specifically requested. Because the trial court had no sua sponte duty to instruct the jury on specific evidentiary limitations, the issue is waived. (People v. Montiel (1993) 5 Cal.4th 877, 918.)
Higuera proposed (and the trial court declined to give) a jury instruction which provided that “[e]vidence of a particular defendant’s contact with law enforcement was introduced only for the purpose of explaining the basis of the ‘gang expert’s’ opinions as it relates to the elements of the charged special circumstance in this case and the criminal street gang enhancement. It cannot be used to show guilt for the charged offense or offenses.” Although the proposed instruction referred to the gang expert’s testimony, it did not specifically state that jurors could not rely on matters considered by the expert for the truth of the matter asserted. Moreover, the instruction was not a correct statement of law, because gang evidence was relevant to the underlying charged offenses as well. (Hernandez, supra, 33 Cal.4th at p. 1049.) During in limine motions, Amante’s and Ochoa’s counsel and the trial court did raise general concerns regarding the jury’s ability to understand whether evidence was being admitted as foundation for the gang expert’s opinion or for the truth of the matters asserted, and whether the jury should be instructed on that issue. However, Amante directs this court to no specific request that any defendant made for such a limiting instruction after the trial court issued its detailed ruling on the admissibility of gang evidence. The written proposed jury instructions that defendants submitted to the trial court do not include a request cautioning the jury about hearsay statements relied on by the gang expert.
Defendants argue that if their trial counsel failed to adequately preserve objections about the adequacy of the limiting instruction for appellate review, they received ineffective assistance of counsel. Because we conclude that any arguable error here was harmless and that defendants therefore were not prejudiced, we reject this argument.
Even assuming that the issue was not waived, failure to give such a limiting instruction here was not reversible error. Amante argues: “By including gang acts and criminal street gang evidence in section [sic, presumably, CALJIC No. 2.50] [the trial court] opened the door to expansive consideration of expert hearsay anecdotes, predicate priors, and opinions about primary activities on issues of intent and knowledge for aiding and abetting.” Amante directs this court to no specific hearsay evidence relied on by the gang expert that might have been considered for an improper purpose, much less demonstrate how he was prejudiced by the absence of a limiting instruction, other than to argue generally that there was “a grave risk jurors would fill in the gaps of a spur-of-the-moment gang foray based on [unspecified] general gang evidence (including related expert opinions) as an improper substitute for proof of intentional aiding and abetting or natural and probable consequences.” The trial court in fact limited the amount of otherwise inadmissible hearsay the expert would be allowed to reveal when stating his opinion in order to prevent jurors from relying on evidence for an improper purpose. Having reviewed the gang expert’s testimony, we conclude that the revelation of hearsay matters absent a limiting instruction does not undermine confidence in the judgments. (People v. Montiel, supra, 5 Cal.4th at p. 922.)
Finally, Amante argues that the trial court “failed to give any instruction like CALJIC [No.] 2.50.2 informing jurors they could not consider other crimes or gang activities that were not at least proven to a preponderance (or beyond a reasonable doubt if they are essential to guilt; CALJIC No. 2.01).” Amante does not direct us to any particular gang evidence that was subject to the preponderance of the evidence standard. Had the trial court instructed the jury with the optional portion of CALJIC No. 2.50 directed at proof of crimes committed by defendants other than those for which they were on trial, the trial court would have been obligated upon request to give CALJIC No. 2.50.1, which provides that the prosecution has the burden of proving those other crimes by a preponderance of the evidence. (People v. Carpenter (1997) 15 Cal.4th 312, 380-382, disapproved on another ground by Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1106-1107.) The trial court excluded such evidence, and the instruction was not necessary.
As respondent notes, jurors were instructed (at Cardenas’s request) with CALJIC No. 2.50.2, which provides a definition of the preponderance of the evidence burden of proof. However, the instruction was given in connection with CALJIC No. 3.19, placing on defendants the burden of proving by a preponderance of the evidence that Kacee Dragoman and/or Lindsey Ortiz were accomplices in the murder.
The optional language provides in part: “Evidence has been introduced for the purpose of showing that the defendant committed [a crime] [crimes] other than that for which [he] [she] is on trial[.]” (CALJIC No. 2.50.)
Amante requested below that the instruction be given but later withdrew the request.
The jury was properly instructed with CALJIC Nos. 2.90 (providing that the prosecution had the burden of proving defendants’ guilt beyond a reasonable doubt), 8.80.1 (providing that the prosecution had the burden of proving the truth of the gang special circumstance beyond a reasonable doubt), and 17.24.2 (providing that the prosecution had the burden of proving the truth of the gang enhancement beyond a reasonable doubt).
CALJIC No. 2.50 as given in this case was a correct statement of the law and was beneficial to defendants because it limited the purpose for which gang evidence was admitted. We reject defendants’ argument that the instruction amounted to “serious error.”
4. Unanimity instruction
The jury found true the allegations that defendants intentionally killed the victim while they were active participants in a criminal street gang and that the crime was carried out to further the activities of the gang (§ 190.2, subd. (a)(22)), and that defendants committed murder for the benefit of a street gang (§ 186.22, subd. (b)(1)). The existence of a criminal street gang is an element of these allegations. (Ortega, supra, 145 Cal.App.4th at p. 1355.) Defendants argue for the first time on appeal that the trial court had a sua sponte duty to provide the jury with a unanimity instruction with respect to the gang allegations, requiring that jurors had to unanimously agree on “the applicable qualifying street gang.” (E.g., CALJIC No. 17.01 [where evidence of more than one act or omission that could result in guilty verdict, jurors must agree that defendant committed same act or omission in order to convict].) We disagree.
A jury verdict must be unanimous in a criminal case. (People v. Russo (2001) 25 Cal.4th 1124, 1132.) “Additionally, the jury must agree unanimously the defendant is guilty of a specific crime. [Citation.] Therefore, cases have long held that when the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act. [Citations.]” (Ibid., original italics.)
Amante cites no authority for the proposition that jurors must unanimously agree on the name of the gang supporting a gang allegation, and as he acknowledges, at least one published opinion holds to the contrary. (Ortega, supra, 145 Cal.App.4th at p. 1357.) A jury convicted defendant in Ortega of first degree murder and found true allegations that he killed the victim while being an active participant in a criminal street gang, and that the murder was committed for the benefit of, at the direction of, or in association with a criminal street gang. (Id. at p. 1346.) A gang expert in Ortega testified that there were thousands of Norteño gang members in the Sacramento area, and that there were 20 to 25 subsets of Norteños. (Id. at p. 1356.) The appellate court rejected defendant’s argument that a unanimity instruction was required as to which gang was involved: “ ‘When an accusatory pleading charges a single criminal act, and the evidence shows more than one unlawful act, there is the possibility of a conviction even though the jurors are not in agreement as to the act upon which the conviction is based. [Citations.] It is the general rule in such cases that the prosecutor either “must select the specific act relied on to prove the charge or the jury must be instructed in the words of CALJIC No. 17.01... that it must unanimously agree beyond a reasonable doubt that defendant committed the same criminal act. [Citations.]” ’ [Citation.] [¶] The name of a gang is not a criminal act. There was no evidence that defendant[s] belonged to any gang other than the Norteño gang, thus there was no possibility the jury was in disagreement about the gang with which defendant associated. There was no need for a unanimity instruction.” (Id. at p. 1357, original italics.)
Scott testified that there were various “subsets” of the Norteño gang in Sonoma County (including, among others, Varrio Santa Rosa Norte (VSRN) and the Aztec Tribal Cholos (ATC)), and that the subsets unite together to “fight against the common enemy, the Sureños.” He explained that “various subsets of the Norteño organization will act together and commit crimes together.” Evidence was presented showing that defendants Amante, Cardenas, and Higuera were associated with the VSRN subset of the Norteño gang, and that Lopez was affiliated with the ATC subset.
We disagree with Amante’s argument that there was “room to dispute” whether the Norteño gang was “the relevant gang here”; in fact, there was evidence that defendants all were acting for the benefit of the Norteño gang on the night of the murder. As in Ortega, supra, 145 Cal.App.4th 1344, “[n]o evidence indicated the goals and activities of a particular subset were not shared by the others. There was sufficient evidence that Norteño was a criminal street gang, that the murder was related to activity of that gang, and defendant[s] actively participated in that gang. There is no further requirement that the prosecution prove which particular subset was involved here.” (Id. at p. 1357.) We agree with respondent that once the jury found here that defendants were active members of a street gang and that they committed murder for the benefit of a street gang, it was irrelevant whether the specific beneficiary of the crime was the “umbrella” Norteño gang or a subset of the gang. No unanimity instruction was necessary.
5. Bifurcation
Before trial, Higuera (joined by Amante) moved to bifurcate trial of the gang enhancement (§ 186.22, subd. (b)(1)) and gang special circumstance (§ 190.2, subd. (a)(22)) from the murder charge. The trial court denied the motion, stating that “the gang charges are now so intertwined with the underlying substantive offense that bifurcation here is neither appropriate nor even possible considering the facts of this case.” Amante, Cardenas, and Higuera argue on appeal that the trial court’s ruling “resulted in gross unfairness and denial of due process and a fair trial.” We review a trial court’s denial of a request to bifurcate for abuse of discretion (Hernandez, supra, 33 Cal.4th at pp. 1048, 1051) and find no abuse of discretion.
Section 1044 gives a trial court wide discretion to bifurcate proceedings. (People v. Calderon (1994) 9 Cal.4th 69, 74-75.) The Supreme Court has distinguished between a prior conviction allegation, which relates to the defendant’s status and may have no connection to the charged offense, and a criminal street gang allegation, which “is attached to the charged offense and is, by definition, inextricably intertwined with that offense.” (Hernandez, supra, 33 Cal.4th at p. 1048.) There is generally less need for bifurcation of a gang enhancement than of a prior conviction allegation. (Ibid.)
Section 1044 provides: “It shall be the duty of the judge to control all proceedings during the trial, and to limit the introduction of evidence and the argument of counsel to relevant and material matters, with a view to the expeditious and effective ascertainment of the truth regarding the matters involved.”
Higuera argued below that the trial court should bifurcate both the gang enhancement and special circumstance from the murder change. Amante argues on appeal that the trial court’s discretion to bifurcate gang allegations “doubtless [applies to] the special circumstance, not just the gang enhancement.” We note that the Hernandez court stated in dicta that the trial of a special circumstance pursuant to section 190.2, subd. (a)(22) is to “be determined at the same time as the guilt determination.” (Hernandez, supra, 33 Cal.4th at p. 1049.) Even assuming that the trial court had discretion to bifurcate the determination of the special circumstance, we conclude that the trial court did not abuse its discretion in declining to bifurcate it.
The party seeking severance or bifurcation has the burden to “clearly establish that there is a substantial danger of prejudice requiring that the charges be separately tried.” (People v. Bean (1988) 46 Cal.3d 919, 938.) No such substantial danger of prejudice was shown here. We agree with the trial court that the gang charges were “so intertwined with the underlying substantive offense” that it would have been all but impossible to bifurcate the trial. Witnesses established that defendants were motivated to target “Scraps” after hearing what they believed to be Sureño whistles coming from an area that was the subject of rival claims by the Norteños and Sureños. Gang rivalry was the only motive offered for the murder; a bifurcated trial therefore would have been impracticable.
Our Supreme Court recognized in Hernandez, supra, 33 Cal.4th 1040, that bifurcation may be appropriate in cases where, for example, gang evidence 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.” (Id. at p. 1049.) The trial court here excluded evidence it considered unduly prejudicial and limited the gang expert’s testimony to “less prejudicial aspects of these gang contacts such as self-admissions, gang clothing, associating with other gang members, frequenting gang areas, gang tattoos, flashing gang signs, possession of gang paraphernalia, and making gang comments.” Although it is true that the predicate offenses offered to establish a “ ‘pattern of criminal gang activity’ ” (§ 186.22, subd. (e)) were not related to the charged crime or defendants (Hernandez, supra, at p. 1049), this was not a situation where such evidence was “unduly prejudicial, thus warranting bifurcation.” (Ibid., italics added.) Because it was clear that the evidence was limited to prove the gang allegations and not to prove that defendants had a propensity to commit crime, there was no risk of confusion with collateral matters. Further, “[e]ven if some of the expert testimony would not have been admitted at a trial limited to guilt, the countervailing considerations that apply when the enhancement is charged permitted a unitary trial.” (Id. at p. 1051.) We find no strong support for bifurcation and accordingly find no abuse of discretion.
C. Amante’s Severance Motions.
Amante argues on appeal that the trial court erred when it denied his motions to sever his trial from that of his codefendants. After his arrest, Amante gave a lengthy statement to Detective George Collord in which he first denied involvement in the murder, but then acknowledged that he was present and described various details about the crime. Amante moved before trial to sever his trial from that of the other defendants, arguing that defendants would be offering conflicting or antagonistic defenses, and that admission of his statement to police would violate his codefendants’ Sixth Amendment rights. (People v. Aranda (1965) 63 Cal.2d 518; Bruton v. United States (1968) 391 U.S. 123.) The prosecution proposed redacting the transcript pursuant to Aranda and Bruton, so that references implicating Amante’s codefendants would be omitted. The trial court denied the motion to sever, concluding that the redacted statement appeared appropriate, and that there were no antagonistic defenses justifying severance.
The trial court later granted Amante’s renewed motion, in which Amante argued that the redacted version of his statement to police left out information that was favorable to him. The trial court declined to sever the trial, but granted Amante’s alternative request to seat two juries to hear the case. The prosecution thereafter requested that the trial court reconsider seating two juries, representing that the prosecutor no longer intended to offer Amante’s statement to police into evidence, rendering separate panels unnecessary. The trial court agreed and decided not to seat two juries. Amante’s statement to the police was not admitted at the joint trial.
Ortiz testified at trial (on cross-examination) that after Amante’s arrest, Amante told her and Dragoman that they should give statements to the police, and that Ortiz reviewed police reports before giving her statement. Ortiz testified that before she spoke to police, Amante told her that he had already given a statement. After Ortiz testified, Amante again renewed his motion for severance, arguing that Ortiz’s reference to his statement to police “put [him] at a substantial tactical disadvantage.” The trial court denied the motion, and Amante argues on appeal that the trial court’s refusal to sever the trial resulted in gross unfairness and the denial of due process and a fair trial.
Section 1098 provides that when two or more defendants are jointly charged, they must be jointly tried unless the trial court orders separate trials. “We review a trial court’s denial of a severance motion for abuse of discretion based on the facts as they appeared at the time the court ruled on the motion. [Citation.] If the court’s joinder ruling was proper at the time it was made, a reviewing court may reverse a judgment only on a showing that joinder ‘ “resulted in ‘gross unfairness’ amounting to a denial of due process.” ’ [Citation.] Even if the court abused its discretion in refusing to sever, reversal is unwarranted unless, to a reasonable probability, defendant would have received a more favorable result in a separate trial. [Citation.]” (People v. Avila (2006) 38 Cal.4th 491, 575.)
We conclude that the trial court did not abuse its discretion in denying Amante’s severance motions. Although it is true that Ortiz and Dragoman were permitted to testify that they spoke with Amante before giving their statements to police (consistent with the codefendants’ theory that Amante coached the women to give accounts that matched his own), the trial court excluded the contents of the incriminating statement that Amante himself gave to police. Furthermore, even assuming that the testimonies of Ortiz and Dragoman regarding their conversations with Amante would not have been admitted in a separate trial, we conclude that there is no reasonable probability that Amante would have received a more favorable result in such a trial. (People v. Avila, supra, 38 Cal.4th at p. 575.)
Amante states on appeal that he “could not even offer his consistent police statement” to rebut the suggestion that he gave a different account of the murder to police than Ortiz and Dragoman did. He does not direct us to anywhere in the record where he requested admission of the statement. In fact, before Detective Collord testified, Amante’s counsel expressed his concern that the prosecutor would ask questions that would open the door to testimony about Amante’s statement to Collord. The prosecutor stated that he was “not going to talk at all about the interview with defendant Amante including the circumstances of that interview so that we can avoid precisely the concern that counsel is concerned with. [¶] So if [Amante’s counsel] is interested in pursuing that, then I would share the concern that he has with regard to kicking open any doors as to the content of the interview itself.” Amante’s counsel responded, “I understand the extremely thin ice upon which I would be treading and will advance accordingly. [¶] So I have no further objection.”
D. Photographic Lineup.
Amante argues that it was reversible error to admit evidence of Miguel’s out-of-court identification of a picture of Amante in a photographic lineup. In response to Amante’s motion to suppress evidence of the identification, the prosecutor offered the following evidence at a hearing pursuant to Evidence Code section 402. On June 28, 2002 (two days after the murder), Miguel went to the police station, where Detective Collord showed Miguel seven “six-pack” photographic lineups, or a total of 42 photographs of individuals. The photographs were about two inches by three inches: some were black and white, and some were in color. The lineup included color photographs of Amante and Higuera and a black-and-white photograph of Ochoa. Miguel was not able to identify anyone in the photographs.
Higuera, Lopez, and Cardenas did not join in Amante’s motion below to exclude evidence of the photographic lineup, and they likewise do not join Amante’s appellate challenge to the admission of evidence of the photographic lineup.
Evidence Code section 402 provides that the trial court shall determine the existence of a preliminary fact where the fact is disputed.
That same night, Miguel traveled with a different detective (Detective Vanderpool) to the crime scene, and Miguel directed Vanderpool to the apartment where Amante lived. After the visit to the crime scene, Vanderpool conducted a second photographic lineup. Vanderpool gave Miguel four large color photographs of men with mustaches: Amante, Higuera, and two other suspects. The photographs of Amante and Higuera (as well as the other two suspects) were the same as the ones that had been previously shown to Miguel by Detective Collord; the only difference was that the photographs were larger (about four inches by five inches). Vanderpool admonished Miguel that the people Miguel had described to him might not be in the photographs. Miguel pointed almost immediately to Amante and identified him as the one who lived in the apartment that he had shown to Vanderpool. Miguel also told Vanderpool that Amante was the person he saw stabbing the victim. According to Vanderpool, Miguel “had no trouble whatsoever identifying th[e] photograph of Mr. Amante.”
At the evidentiary hearing, Robert Shomer, Ph.D., testified for Amante as an expert in eyewitness identification. Shomer testified that showing a witness the same photograph within a relatively short time period might trigger a faulty recognition of a suspect, and he also testified that it is difficult to identify someone from 300 feet away at night. The trial court concluded that the photographic lineup was not so impermissibly suggestive as to give rise to a substantial likelihood of irreparable misidentification, and permitted testimony regarding the identification of Amante.
Before the jury, Detective Vanderpool testified that Miguel identified Amante’s photograph “immediately” and that Miguel said “he could see the knife glistening in the moon during the attack and that Mr. Amante was the one that was stabbing—was one of the ones stabbing the victim.”
Miguel was not able to identify any of the defendants at trial. He recalled, however, that he had been shown a photographic lineup after the murder, and that he had been able to identify the person who was wearing a red jersey and white tank top the night of the murder as “a stabber.”
The burden of demonstrating that an identification procedure is unreliable lies with the defendant. (People v. Ochoa (1998) 19 Cal.4th 353, 412.) A court first determines whether the identification procedure at issue was unduly suggestive so as to give rise to a very substantial likelihood of irreparable misidentification. (Ibid.) If the court concludes that the procedure was not unduly suggestive, the inquiry into the due process claim ends. (Id. at pp. 412-413.) Even if the court concludes that the procedure was unduly suggestive, however, evidence of the identification may still be admissible if the court concludes that the identification was reliable under the totality of the circumstances. (Manson v. Brathwaite (1977) 432 U.S. 98, 113-114.) The factors to be considered in determining reliability include “the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation.” (Id. at p. 114; see also People v. Ochoa, supra, 19 Cal.4th at p. 412.)
Citing the Evidence Code section 402 hearing testimony of his eyewitness identification expert, Amante argues that the second photographic lineup presented to Miguel was unduly suggestive because police showed Miguel the same photograph of Amante twice, and because there was a risk that Miguel had not been able to differentiate between the people he saw the night of the murder. Considering the context in which the second photographic lineup was shown to Miguel, we cannot agree. Although Miguel could not identify anyone in the first photographic lineup, while he was looking at the photographs he told Detective Collord that he possibly knew one of the people who walked across the bridge the night of the murder. Detective Collord did not follow up on this information with Miguel, and the lineup took only about two minutes. Later that night, Miguel was introduced to Detective Vanderpool, and they traveled together to the murder scene. Miguel directed Vanderpool from the scene to Amante’s apartment, told Vanderpool that a person involved in the stabbing lived there, and provided a description of the person who lived in the apartment.
Although Miguel described the person who lived in Amante’s apartment, Vanderpool could not recall at trial the description that had been provided, other than the fact that Miguel said that the person had been wearing a white t-shirt.
Although Miguel previously had been unable to identify Amante in a lineup with a different detective, it makes sense that Vanderpool would show Miguel an additional photographic lineup after Miguel had provided detailed information about a specific suspect following a visit to the scene of the crime. It is not as if police simply showed Miguel photographs of Amante in successive lineups until Miguel was able to identify Amante, a procedure that might be considered unfair because it “suggests in advance of identification by the witness the identity of the person suspected by the police.” (People v. Slutts (1968) 259 Cal.App.2d 886, 891 [photographic lineup violated due process where child shown several pictures, but only one had beard drawn on it].) As respondent notes, had the first lineup influenced Miguel’s second review of photographs, “one would have expected Miguel to recognize all four photos because they had all been included in the earlier review.”
“Surely, we cannot say that under all the circumstances of this case there is ‘a very substantial likelihood of irreparable misidentification.’ [Citation.] Short of that point, such evidence is for the jury to weigh. We are content to rely upon the good sense and judgment of American juries, for evidence with some element of untrustworthiness is customary grist for the jury mill. Juries are not so susceptible that they cannot measure intelligently the weight of identification testimony that has some questionable feature.” (Manson v. Brathwaite, supra, 432 U.S. at p. 116, italics added.) Amante had the opportunity to cross-examine the two detectives who conducted the photographic lineups, and he also presented at trial the testimony of his own defense expert on eyewitness identification. The jury was presented with ample information to evaluate the reliability of Miguel’s identification of Amante.
Even assuming arguendo that the identification procedure was impermissibly suggestive so as to lead to a substantial likelihood of misidentification, we conclude that the procedure was reliable under the totality of the circumstances. (Manson v. Brathwaite, supra, 432 U.S. at p. 114; People v. Ochoa, supra, 19 Cal.4th at p. 412.) When asked whether he was able to see down the bike path to where the assault occurred, Miguel testified, “Yes. Not perfectly, but I can see the people right there.” Miguel was shown a photograph of Amante just two days after the murder. Most significantly, Vanderpool testified that Miguel “had no trouble whatsoever identifying th[e] photograph of Mr. Amante” as being the person who lived in Amante’s apartment and whom he saw the night of the murder. We conclude that the trial court did not err in admitting evidence of the photographic lineups.
E. Failure to Discharge Juror.
Toward the conclusion of trial, a juror reminded the trial court that he had a prepaid vacation coming up in a few days, as he had previously informed the court. The trial court excused the juror for cause and replaced him with an alternate (identified in the record only as Juror No. 1499). The next day, the trial court reported to defendants’ counsel that it had received a voicemail from the dismissed juror, who claimed that the alternate had learned during trial that she and her husband knew the family of defendant Ochoa. The dismissed juror returned to court, was sworn, and testified that his replacement had told him a few days earlier that she was not comfortable about serving as a juror, because she realized during trial that her husband played soccer with someone who had been attending the trial. According to the dismissed juror, the alternate realized at some point that the person attending the trial was related to defendant Ochoa in some way.
The trial court empanelled five alternate jurors. The dismissed juror was the fourth juror to be excused during trial, leaving one alternate after he was replaced. For simplicity of reference, Juror No. 1499 is hereafter referred to simply as “the alternate” or “the alternate juror.”
The trial court questioned the alternate juror, who reported that she realized on the second or third day of trial that there was someone in the audience whom she had met the previous weekend. She asked the bailiff whether “it was important or not,” but the bailiff told her “as long as [she] didn’t know any of the defendants or any of the lawyers, it didn’t matter.” The juror saw two people (a man and a girl), whom she recognized as audience members from the trial, “almost every weekend” at her husband’s soccer games, where the man played with the juror’s husband. The juror did not realize until toward the end of trial (about two months after it began) how the man and girl were connected with one of the defendants. She overheard someone say the girl’s last name, which led the juror to believe that the girl was Ochoa’s sister and the man was Ochoa’s father. At one point (apparently, during trial), the alternate hosted people associated with the soccer team (including the people she believed to be Ochoa’s father and sister) at her home, and the females were in the juror’s spa together. The alternate explained that she had never talked with Ochoa’s relatives privately, that the relatives had never looked at her when they were at the courthouse, and that they had never discussed the trial with her. The alternate juror told the trial court that she was “trying to be really honest and really fair,” and she did not think that the connection through her husband’s soccer team would “affect [her] in any way.” The alternate also explained that she was not worried about how a verdict would affect her relationship with people on her husband’s soccer team and their wives, stating, “Like I said I—I just met them [Ochoa’s relatives] not too long ago, so they’re not really my friends.”
Counsel for Amante, Cardenas, Higuera, and Lopez sought the discharge of the alternate juror, but the trial court did not believe that there was cause to discharge her. The court nonetheless questioned the alternate further regarding whether she had discussed recognizing audience members with other jurors. The juror stated that she had raised the concern with another woman on the jury, who recommended that the juror speak with the bailiff (which she did). She also discussed the issue with the juror she replaced. The alternate said she had not discussed the issue with her husband. The trial court directed the juror not to discuss with other jurors the fact that she had been questioned, and not to have contact with the people whom she believed to be Ochoa’s relatives.
The next day, the trial court questioned the bailiff with whom the alternate spoke when she first realized that she might recognize people attending the trial. The bailiff testified that the alternate had mentioned to him “in the very beginning of the trial when she got here” that she might recognize someone in the audience. He directed her to raise the subject during voir dire. He testified that he “got the impression that she may recognize someone in the audience. She wasn’t sure. That’s the impression that I got.”
The trial court again briefly questioned the alternate, who stated that the people she recognized had been at her house “[t]hree Sundays ago.” She stated that she was not sure about the possible relationship between them and Ochoa until the following Sunday, when someone mentioned the girl’s last name. The juror “knew for sure” the relationship the following Friday, when she “saw the men talking to [Ochoa’s attorney].” After the court concluded questioning the juror, counsel for Amante, Cardenas, Higuera, and Lopez renewed their objection to retaining the juror. The trial court declined to excuse the juror.
Amante and Lopez argue that the trial court committed reversible error by failing to discharge the alternate juror, as she was biased and committed misconduct. Cardenas and Higuera join the arguments. We address the alleged juror bias and misconduct separately.
1. Alleged juror bias
Section 1089 provides in relevant part that “[i]f 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,... the court may order the juror to be discharged and draw the name of an alternate....” A juror may be excused for “ ‘implied bias’ ” only for one of the reasons listed in Code of Civil Procedure section 229, “ ‘and for no other.’ ” (Code Civ. Proc., § 229; People v. Ledesma (2006) 39 Cal.4th 641, 670.) “If the facts do not establish one of the grounds for implied bias listed in that statute, the juror may be excused for ‘[a]ctual bias’ if the court finds that the juror’s state of mind would prevent him or her from being impartial. (Code Civ. Proc., § 225, subd. (b)(1)(C).)” (Ledesma at p. 670.) “A sitting juror’s actual bias that would have supported a challenge for cause also renders the juror unable to perform his or her duties and thus subject to discharge.” (People v. Nesler (1997) 16 Cal.4th 561, 581.) We review a trial court’s decision whether to discharge a juror for abuse of discretion and will uphold the court’s ruling if supported by substantial evidence. (People v. Marshall (1996) 13 Cal.4th 799, 843.) “[A] juror’s inability to perform as a juror must ‘ “appear in the record as a demonstrable reality.” ’ ” (Ibid.) We conclude that the trial court did not abuse its discretion when it declined to discharge the alternate juror.
Amante and Lopez argue that it was not reasonably possible that the alternate juror could be impartial, due to her association with members of Ochoa’s family. Their arguments vastly overstate the connection between the juror and the people she believed to be Ochoa’s family members. Amante argues that the juror’s “biases and sympathies are particularly strong given the close kinship bonds at issue here, both with the juror’s own family and the defendant’s family.” To the contrary, the people the juror saw on weekends were only casual acquaintances she had recently met, and with whom she had never been alone. People v. Tidwell (1970) 3 Cal.3d 62, upon which Amante relies in arguing that the juror likely was biased, is inapposite. In reversing a murder conviction in Tidwell because the trial court erred in denying a motion to change venue, our Supreme Court observed that a juror who was an acquaintance of the victim could not be expected to be impartial. (Id. at p. 73.) Here, by contrast, the alternate juror was not acquainted with the victim (or any of the defendants, for that matter).
Lopez renews the argument his counsel made below that “the relationships disclosed by Juror No. 1499 [the alternate juror] would ‘affect her ability to make a judgment against Mario Ochoa and conversely make it easier for her to make a verdict against any or all of the other defendants.’ ” The argument that the alternate might be biased toward Ochoa (and against the other defendants) is entirely speculative, especially in light of her sworn statement that she was not concerned about how a verdict would affect her relationship with people on her husband’s soccer team and their wives, and that Ochoa’s relatives were “not really [her] friends.” We therefore disagree with Lopez’s argument that the alternate juror might have been motivated to be lenient on Ochoa (and harsher on other defendants) because “her husband could blame her for any social fallout that might result from a harsh verdict against Ochoa.”
Amante and Lopez both argue that we should give little weight to the alternate juror’s statements that she could serve as an impartial juror, as the excused juror reported that the alternate did not feel comfortable serving on the jury. The dismissed juror testified that his replacement had said in a joking way when he left the trial, “like, ‘Oh,’ you know, ‘thanks a lot. I thought we were friends, and now I have to be a juror.’ She doesn’t feel comfortable in this position.” The alternate, not the dismissed juror, was in the best position to explain how she truly felt about continuing to serve on the jury. When asked how she felt about being a juror, she stated, “Well, at first I didn’t even think about it because I wasn’t sure who they were related to. And I actually thought about it yesterday when I got put in the jury. And I’m—I’m trying to be really honest and really fair, and I don’t think it would affect me in any way.” After the juror answered the trial court’s questions, the court stated that the juror “was completely open,” and the court had “no doubt that she was telling us exactly what the situation was. There was no hesitancy to explain anything.” We see no reason to question this conclusion, and we similarly disagree with Lopez’s characterization of the alternate’s responses to questions as “inconsistent” and “confusing.” Reversal is not required under United States v. Allsup (9th Cir. 1977) 566 F.2d 68, relied upon by Lopez, as there is no evidence (either direct or circumstantial) in the present case that the alternate juror had a “substantial emotional involvement” (cf. id. at p. 71) with casual acquaintances she met by attending her husband’s soccer games.
Amante and Lopez argue that the trial court failed to conduct a sufficient inquiry into the alternate juror’s alleged bias. To the contrary, the trial court thoroughly questioned the juror, then followed up twice in order to clarify answers she had provided and also questioned the bailiff the juror had consulted about her concerns. The court also solicited questions from defendants’ counsel. Because the trial court conducted such a thorough inquiry, we consider inapposite the cases upon which Lopez relies.
2. Alleged juror misconduct
A juror’s misconduct is “good cause” to believe that the juror will not be able to perform his or her duty. (§ 1089; People v. Daniels (1991) 52 Cal.3d 815, 864.) Juror misconduct “leads to a presumption that the defendant was prejudiced thereby.” (People v. Nesler, supra, 16 Cal.4th at p. 578; see also People v. Pierce (1979) 24 Cal.3d 199, 207.) “This presumption can be rebutted by a showing no prejudice actually occurred or by a reviewing court’s examination of the entire record to determine whether there is a reasonable probability of actual harm to the complaining party.” (People v. Loot (1998) 63 Cal.App.4th 694, 697.)
Amante argues that the alternate juror committed prejudicial misconduct by discussing with another juror a “subject connected with the trial” (§ 1122, subd. (a)) when she discussed “her ongoing relationship with Ochoa’s family” with the excused juror, and when she had “[c]lose social interaction with a defendant’s family.” (People v. Loot, supra, 63 Cal.App.4th at pp. 697-698 [misconduct, although not prejudicial, for juror to ask about prosecutor’s personal life with nonjuror during trial and to express curiosity about prosecutor to other jurors].) Although we again stress that Amante overstates the extent and nature of the alternate’s interactions with people believed to be Ochoa’s family members, we accept (as respondent apparently does) that she technically committed “misconduct” by interacting with them after she recognized them in the audience at trial and discussing that fact with other jurors. (People v. Jones, supra, 17 Cal.4th at p. 310 [misconduct, although “not egregious,” for jurors to communicate with people associated with the case].) However, we agree with respondent that any such misconduct was not prejudicial.
“Among the factors to be considered when determining whether the presumption of prejudice has been rebutted are ‘the nature and seriousness of the misconduct, and the probability that actual prejudice may have ensued.’ ” (People v. Loot, supra, 63 Cal.App.4th at p. 698.) In light of the fact that the alternate juror was not at first sure that she recognized the audience members at issue, the fact that she was only casual acquaintances with them, the fact that she never spoke with them about the trial and was never alone with them, “[w]e do not believe [the juror’s] conduct established as a ‘demonstrable reality’ her inability to perform the functions of a juror.” (Ibid.) We likewise reject Lopez’s argument that the alternate’s “failure to disclose” her casual relationship with trial spectators somehow undermined her claims that she could be impartial. Ideally she should have raised the issue herself with the trial court; however, she might not have done so based on her conversation with the bailiff. After the issue was raised and the trial court questioned the juror, the court stated that the juror “was completely open here,” and the court had “no doubt that she was telling us exactly what the situation was.” Substantial evidence supports the trial court’s decision to retain the alternate, and we find no abuse of discretion.
F. Cumulative Effect of Alleged Errors.
Claiming that the cumulative effect of the errors he has identified on appeal deprived him of a fair trial, Amante argues that the judgment should be reversed on that basis. Cardenas and Higuera join in the argument. Having reviewed the record and rejected defendants’ arguments as set forth above, we disagree. (People v. Kipp (1998) 18 Cal.4th 349, 383 [issues raised on appeal did not singly or cumulatively establish prejudice requiring reversal of convictions].)
G. Amante’s Presentence Custody Credits.
Amante argues, and respondent concedes, that the abstract of judgment omits his presentence custody credits. Amante requests that his abstract of judgment be amended to reflect the credits. He does not, however, state the custody credits to which he is entitled. His presentence report stated that he was entitled to 1,177 days credit for time served as of the date the report was prepared. The court did not address Amante’s credits when sentencing him, about six months after the preparation of the presentence report.
The abstracts of judgment for the other defendants state their presentence custody credits.
Section 1237.1 provides, “No appeal shall be taken by the defendant from a judgment of conviction on the ground of an error in the calculation of presentence custody credits, unless the defendant first presents the claim in the trial court at the time of sentencing, or if the error is not discovered until after sentencing, the defendant first makes a motion for correction of the record in the trial court.” Although it is true that this court may consider a question about presentence custody credits absent an appropriate motion with the trial court where other issues are raised on appeal (People v. Sylvester (1997) 58 Cal.App.4th 1493, 1496, fn. 3), we are not compelled to do so. (People v. Mendez (1999) 19 Cal.4th 1084, 1100-1101.) We decline to exercise our discretion to correct Amante’s abstract of judgment in light of the fact that neither Amante nor respondent identifies the correct number of presentence custody credits to which he is entitled. Amante may make an appropriate motion in the trial court to correct his abstract of judgment. (§ 1237.1.)
H. Cardenas’s Consecutive Sentence for Street Gang Enhancement.
The trial court sentenced Cardenas to a term of 25 years to life for his conviction of first degree murder. (§ 190.5, subd. (b).) The court added an additional 10 years for the gang participation enhancement (§ 186.22, subd. (b)(1)), for a total term of 35 years to life. Cardenas argues that the addition of 10 years for the gang enhancement was error. Respondent concedes that the trial court erred, and we agree.
The trial court first stayed the enhancement, based on the fact that the basis for the special circumstance was identical to the enhancement. The prosecutor then argued that the trial court had the authority to impose 10 years pursuant to section 186.22, subdivision (b)(1)(C), and the trial court imposed that sentence, stating that the evidence supported the enhancement.
Section 186.22, subdivision (b)(1) provides for an enhancement if a defendant 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 criminal conduct by gang members). If the felony is a violent felony, the enhancement is an additional 10 years in state prison. (§ 186.22, subd. (b)(1)(C).) However, if the defendant is convicted of a felony punishable by life imprisonment, the enhancement provides that the defendant shall not be paroled until a minimum of 15 years haszx been served. (§ 186.22, subd. (b)(5).) “The determinate term enhancement provided for in subdivision (b)(1)(C) is to be applied only when the conviction is of a violent offense for which a determinate term is proscribed; if the conviction is of a crime for which an indeterminateterm of life in prison is proscribed, the limitation upon parole eligibility provided for in subdivision (b)(5) is applicable. If the parole limitation of subdivision (b)(5) is applicable, the 10-year enhancement is not.” (People v. Fiu (2008) 165 Cal.App.4th 360, 390, citing People v. Lopez (2005) 34 Cal.4th 1002, 1007, original italics, fn. omitted.)
The trial court erred in imposing a 10-year enhancement pursuant to section 186.22, subd. (b)(1)(C). Instead, the court should have imposed a limitation upon Cardenas’s minimum parole eligibility of 15 years, pursuant to section 186.22, subdivision (b)(5).
III.
Disposition
The 10-year enhancement imposed on Cardenas pursuant to section 186.22, subdivision (b)(1), is ordered stricken. Cardenas’s abstract of judgment shall be modified to reflect a total sentence of 25 years to life, with a minimum parole eligibility of 15 years. The trial court is directed to prepare an amended abstract of judgment, and a certified copy of the modified abstract shall be forwarded to the Department of Corrections and Rehabilitation. In all other respects, the judgments are affirmed.
We concur: Ruvolo, P.J., Reardon, J.