Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. KA068471, William R. Pounders, Judge.
Marilee Marshall & Associates, Inc., Marilee Marshall and Jennifer L. Peabody for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Michael C. Keller and Beverly K. Falk, Deputy Attorneys General, for Plaintiff and Respondent.
DOI TODD, J.
A jury convicted Benjamin Cruz, Jr. (appellant) of second degree murder (Pen. Code, § 187, subd. (a)) (count 1); attempted, willful, deliberate and premeditated murder (§§ 664/187, subd. (a)) (count 2); assault with a firearm (§ 245, subd. (a)(2)) (count 3); and shooting at an occupied motor vehicle (§ 246) (count 4). The jury found true the allegations in counts 1 and 2 that a principal intentionally discharged a firearm and caused great bodily injury and death pursuant to section 12022.53, subdivisions (d) and (e)(1). The jury found true that the offenses were committed for the benefit of a criminal street gang with respect to all counts. (§ 186.22, subd. (b)(1)(A).) Appellant and his codefendant, Eugene Barron (Barron) were tried jointly with separate juries. The trial court declared a mistrial in Barron’s case.
All further references to statutes are to the Penal Code unless stated otherwise.
Appellant admitted having suffered a prior conviction for a serious felony under the “Three Strikes” law, and the trial court subsequently granted appellant’s Romero motion and struck the prior conviction allegations. After denying appellant’s motion for a new trial, the trial court sentenced appellant to 65 years to life and life in prison. The sentence consisted of 15 years to life on count 1, a consecutive term of life with the possibility of parole on count 2, and 25 years to life added to each of these two counts for the firearm-use enhancement. In count 3, the trial court selected the midterm of three years and added five years for the gang allegation for a total of eight years. The trial court imposed a sentence of 15 years to life in count 4 pursuant to section 186.22, subdivision (b)(4)(B). The sentences on counts 3 and 4 were to run concurrently.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
Appellant appeals on the grounds that: (1) there was insufficient evidence as a matter of law to support appellant’s convictions; (2) there was insufficient evidence to support the gang enhancement; (3) the gang expert’s testimony usurped the jury’s fact-finding function and violated appellant’s rights to due process, a fair trial, and a trial by jury; (4) the gang expert’s testimony violated appellant’s right to confront and cross-examine witnesses; (5) the trial court’s limitation of defense counsel’s cross-examination of the coroner deprived appellant of his rights to due process, to confront and cross-examine his accuser, to a fair trial, and to present a defense; (6) cumulative error requires reversal; and (7) count 4 should be stayed pursuant to section 654.
FACTS
I. Prosecution Evidence
On September 18, 2004, several neighbors in the area of Shadow Oak Park in the City of West Covina heard four to five gunshots between 4:00 and 4:30 a.m. They also heard a car stopping and a car door opening before the gunfire. After the shooting stopped, a car or a truck was heard to screech away. A male voice was heard calling out “Help me, help me,” and the person sounded as if he were in pain. The neighbors called 911 and police soon arrived. It appeared that the first police car on the scene left after finding nothing. The voice crying out for help ceased.
Corporal Michael Barron arrived on Shadow Oak Drive at approximately 4:20 a.m. He found a deceased individual after a five-minute search. The victim was approximately 25 feet from the street on the rise of an embankment located on the south side of Shadow Oak Drive. The victim, whose right leg was covered in blood, was later identified as Danny Hernandez (Hernandez).
An autopsy later revealed that Hernandez had suffered a gunshot wound through the right thigh that completely severed the popliteal artery. This caused severe and rapid bleeding and caused his death.
Detective Steve Wheeless of the West Covina Police Department was assigned to investigate the shooting. He saw a tire mark in the number one traffic lane of Shadow Oak Drive, parallel to Hernandez’s body. There were also other, fainter tire marks. Detective Wheeless saw that, east of the dark tire mark, there were two expended nine-millimeter casings, a copper jacket from a bullet, and a mangled bullet fragment. He found the top of a Heineken bottle with the cap still on. Near the bottle there were pieces of a mirror bearing the words “are closer,” which indicated that the pieces belonged to a vehicle’s passenger-side mirror. A trail of blood led from the bicycle lane onto the sidewalk and then into the shrubbery to the place where Hernandez’s body lay. Detective Wheeless determined that Hernandez had run south on the sidewalk into the shrubbery and then east to the spot where his body lay. He noted that the main entrance to Shadow Oak Park was on Shadow Oak Drive. People went to Shadow Oak Park at night to drink, smoke, and write graffiti.
Christina Ortiz (Christina) and her sister, Monica Ortiz (Monica), grew up in the neighborhood claimed by the Lil Hill gang and knew that Hernandez was a member of Lil Hill. They also knew Lil Hill gang members named Pablo Penate (Penate) and Jerry Cortes (Cortes). Christina was familiar with Cortes’s yellow car that looked like a taxi. Later on during the day of September 18, 2004, Christina heard that Hernandez had been killed. She went to the Hernandez home and spoke with his brother Jimmy. Jimmy told Christina that Penate had been with Hernandez when he was killed. Christina later spoke with Penate, who told her that he had been drinking with Hernandez and Cortes at Shadow Oak Park. Cortes drove his car, the yellow taxi, to the park. Hernandez was in the front passenger seat and Penate was in the backseat. Penate told Christina that a blue pickup truck passed them as the yellow taxi was driving out of the park. The young men began throwing gang signs.
Penate and his friends turned left out of the park onto Shadow Oak Drive and proceeded east toward Nogales Street. The blue truck made a U-turn and followed the yellow taxi. Penate said that when the taxi accelerated, the blue truck did also. When the taxi pulled over, the blue truck pulled up next to it, and the passenger in the blue truck began shooting. He shot Cortes in the face. Penate said that Hernandez got out of the car to throw a beer bottle at the truck and was apparently shot as he was getting out of the car. Penate said he lay down on the floor in the back of the car. He described the shooter as having a thick goatee, and he said the driver of the blue truck was bald. Penate said that both were Hispanic.
Penate also spoke with Lisa Carrera (Carrera), who had dated Hernandez for many years and had a child with him. Carrera had met Penate, who was called “Goblin,” before, and she knew he was an associate of the Lil Hill gang. Shortly after the shooting, Hernandez’s brother Jimmy telephoned Carrera and put Penate on the telephone. Penate told Carrera that he knew what had happened and that he had been in the backseat of Cortes’s taxi when Hernandez was killed. Penate told Carrera the same story he recounted to Christina, except that he said he and Hernandez both ran from the car, in opposite directions, while shots were being fired. On September 24, 2004, Carrera told Detective Wheeless about her conversation with Penate.
Jessica Cortes (Jessica) was Cortes’s niece. She knew that Cortes drove an old yellow taxi with black tinted windows. On September 18, 2004, at approximately 4:30 a.m. she was awakened by knocking on the door of her home in La Puente. She woke her father, and he opened the door to find Cortes there with his face and shirt covered in blood. It seemed he was nearly falling over. An ambulance was called, and it took Cortes to the hospital. The police also arrived.
Cortes’s yellow 1991 Ford Crown Victoria, its windows down, was parked across the street from Jessica’s home. Detective Aldecoa of the West Covina Police Department examined the car and saw Lil Hill gang graffiti inside. There appeared to be bullet holes on the rear trunk and on the driver’s-side rear passenger door. A trajectory rod indicated that a bullet had gone through the rear of the trunk. There was a bloodstained piece of paper on the front seat and another on the driver’s-side rear passenger door. Detective Aldecoa also saw blood droplets leading to Jessica’s apartment from the courtyard of her apartment house.
Dr. John Nguyen treated Cortes at the hospital. Cortes suffered two penetrating wounds—one to the left cheek and the other to his ear. Cortes suffered a left orbital floor fracture and a fracture of the upper left jaw.
During the investigation of the shooting, Detective Wheeless spoke with Cortes several times. Cortes had a large bandage on the left side of his face. Later, he had two circular scars and a line of scarring. Jessica testified that Cortes would leave the room when family members talked about him being required to testify at trial. At the time of her testimony, Jessica did not know Cortes’s whereabouts, although she had tried to find him.
Monica testified that her cousin, Jesus Contreras (Contreras), was a member of the Puente gang. Through him she had met appellant, whom she knew as “Danger.” Appellant would visit Contreras at Monica’s home, where Contreras lived for a time. Monica knew that appellant was from Puente and had a tattoo saying “P-13.” Monica knew that the Puente and Lil Hill gangs did not get along, and she told appellant that she “was hanging around Lil Hill.” Appellant would still stop by and talk to Monica even after Contreras was told to leave Monica’s home.
On the day of the shooting, appellant went to Monica’s and Christina’s home during the evening. Appellant was bald at that time and was driving a blue pickup truck, one of the cars Monica had seen him drive previously. With him was Barron, and appellant introduced Barron to Monica as “Puppet” from East Side Dukes. Monica knew that East Side Dukes and Lil Hill were rivals. Appellant asked if Monica had heard gunshots or knew that someone from Lil Hill had been shot, and Monica said she did not know anything. Appellant asked Monica to find out who had been shot, and Monica said she would. Appellant and Barron told Monica that they had been near Shadow Oak Park when they heard gunshots, and they had seen a yellow taxi on fire. Christina later told Monica that Hernandez had been killed. At trial, Monica identified a picture of a truck owned by appellant’s father as the one appellant was driving when he and Barron spoke with her outside her home.
Detective Wheeless spoke with Penate on October 5, 2004. Penate admitted being jumped into the Lil Hill gang and said his moniker was Goblin. Eventually Penate said he was present in the car when the shooting occurred. He described a dark, charcoal gray pickup truck as being at the scene. Penate said the driver was a light-skinned male Hispanic with a shaved head and a mustache. Penate said that the front passenger was a male Hispanic with darker skin than the driver, a thick mustache and goatee, a gray long-sleeved sweater, and a blue Dodger cap. Penate said that the passenger did not have a shaved head.
Penate told Detective Wheeless that he went to Shadow Oak Park with Cortes and Hernandez in Cortes’s yellow car on the night of the shooting. When they left, Hernandez was in the front seat and Penate was in the back. As they turned left on Shadow Oak Drive, the truck passed them and then made a U-turn. The truck pulled up on the driver’s side of the yellow car. The passenger leaned out of the truck and started shooting. He yelled “Fuck Lil Hill,” threw a gang sign, and fired several more shots. Cortes was shot in the face, and he stopped the car. When more shots were fired, Hernandez ran from the car and Penate lay down in the backseat. Cortes then drove away eastbound on Shadow Oak Drive toward Nogales Street. Cortes wanted Penate to drive but he refused. They first drove to a gas station for help but the clerk “freaked out.” Finally they went to Cortes’s family’s home. Penate then ran home. He told Cortes to say no one else was with him. Police later found blood drops at the gas station and made diagrams of them.
Detective Wheeless showed three photographic lineups (six-packs) to Penate on October 5, 2004, and Penate could not identify anyone. Detectives interviewed the Ortiz girls, Christina and Monica, on October 8, 2004, and learned of the visit they had received from “Danger” and “Puppet” in the blue Silverado pickup truck. Monica told the detectives that Danger was from Puente and Puppet was said to be from East Side Dukes, and she related their conversation. Detective Wheeless had six-packs with pictures of appellant and Barron with him, and Monica selected the photograph of appellant as Danger and the photograph of Barron as Puppet. Monica’s second interview at the police station was videotaped, and she did not change her prior statement.
When Penate was shown the six-packs containing pictures of appellant and Barron, he unhesitatingly identified appellant as the driver of the truck and Barron as the shooter. Penate also identified a photograph of the truck appellant was driving.
On October 14, 2004, the police served a search warrant at appellant’s home. Prior to that date, Detective Wheeless had driven by the house and seen appellant’s father getting into the truck. Detective Wheeless noted that the passenger-side mirror was missing. Appellant’s father told Detective Wheeless at the time of the search that the truck’s mirror had been knocked off by a motorcycle.
Police had a service manager from a dealership examine the Cruz truck, which was a half-ton Silverado, at the impound yard. At appellant’s trial the service manager testified that he believed the mirror had been removed by unscrewing the base, and it had not been broken off. As often occurs, right-side mirrors on Chevrolet Silverado trucks state that objects in the mirror “are closer than they appear.”
When the Cruz home was searched, an East Side Dukes gang member, Adam Chavez (Chavez), was discovered in the attic. He told police his monikers were Shaggy and Red. He said that he knew appellant as Danger from Puente and that he knew the entire Cruz family. Chavez identified Barron from a photograph as a member of the East Side Dukes with the monikers Puppet and Junior. Chavez said that appellant and Barron were friends, and he had seen them together a few days before September 22, 2004, at appellant’s home. At trial, however, Chavez denied that his moniker was Shaggy and that Barron’s monikers were Puppet and Junior. He said he had never seen appellant with a bald head and denied any recollection of other statements he made to police.
During the search of the Cruz residence, police discovered a wooden board with gang writing on it in the garage. The gang writing pertained to East Side Dukes, Puente, to the Perth Street clique of Puente, and to various monikers, such as Danger and Shaggy. At trial, Chavez identified some of the gang writing on the board as pertaining to the East Side Dukes.
On October 14, 2004, a search warrant was also executed at the house where Barron stayed. Police recovered two boxes with East Side Dukes graffiti from his bedroom. In a subsequent interview with police, Barron said he was a member of East Side Dukes but he did not “gang bang” anymore. He admitted knowing Danger from Puente 13 but stated he had not seen him in over a year.
Appellant was arrested and interviewed on the evening the search warrant was executed at his home. The interview was videotaped and played to members of the jury, who were given transcripts. Police advised appellant of his constitutional rights and told him they were investigating the murder of Hernandez and the shooting of some Lil Hill gang members who were in a yellow car similar to a taxi on Shadow Oak Drive. Appellant said he knew nothing about the shooting and was not there. He said he avoided the area of Shadow Oak Drive. He acknowledged knowing a person named Puppet, but said he did not know his correct name and had not seen him for over a year. He later acknowledged knowing Barron’s correct name.
Appellant admitted being a hardcore member of Puente Perth Street. He at first denied ever driving his father’s Silverado. When told that witnesses had seen him in the truck, he admitted driving it on occasion. Appellant said that his girlfriend had knocked off the mirror on the truck. Appellant had then removed it and thrown it into the trash. As the detectives presented him with various scenarios about the shooting incident, appellant continued to deny he was present.
Appellant eventually admitted hearing about the shooting. He said he was afraid to identify the persons involved because of fear of retaliation. He finally acknowledged that he had been driving the truck, but said he had had no knowledge of what was going to happen. At first he claimed the taxi had turned around but later admitted that he had turned the truck around to follow the taxi at Barron’s direction. He said that when he pulled up beside the taxi, Barron started shooting. The shooting continued as appellant drove straight ahead toward Nogales Street. Barron put a bullet hole in the truck mirror. Appellant said he was unaware Barron had the gun until the truck was beside the car, when Barron pulled the gun from his waistband. Appellant admitted he had seen Barron with the gun on a prior occasion, and appellant had touched the gun before.
Appellant said that after the shooting he drove Barron to the area near Barron’s house and left the truck there. When he returned to the truck the next morning, the mirror had been removed. Appellant admitted going to Monica’s with Barron the night after the shooting to ask her about the shooting.
Evidence at trial revealed that approximately one year earlier, on October 13, 2003, at 2:20 a.m., Deputy John Carlin of the Los Angeles County Sheriff’s Department made a traffic stop of a Chevrolet Impala occupied by two males and three females. The two male occupants of the car were appellant, who was driving, and Barron. Appellant bore numerous Puente gang tattoos. Barron had a Dukes tattoo on his lower back and admitted his East Side Dukes membership. Barron said his name was Charles Barron, and he gave the deputy a false date of birth. Barron’s California identity card was found in appellant’s shoe. Appellant initially denied knowing who Barron was but later admitted that they were friends and that he had the card in his shoe because Barron had asked him to hold onto it for him. Deputy Carlin later confirmed that Barron’s correct name was Eugene Manuel Barron with a birth date of May 5, 1974.
Theodore Cruz (Cruz), appellant’s father, testified that his family home, where appellant resided, was five minutes from Shadow Oak Park, and that his family had previously lived in La Puente. He was aware that appellant was a member of the Puente Perth Street gang and had tattoos. Cruz owned a 1994 Chevrolet Silverado truck that appellant sometimes drove. One morning Cruz noticed that the passenger-side mirror was missing. When Cruz asked appellant about it, appellant said that a motorcycle speeded past him and broke off the mirror while appellant was stopped. Appellant later said that he had fought with his girlfriend, and she had broken the mirror.
Deputy Patricia Bojorquez of the Los Angeles County Sheriff’s Department testified at trial that she had escorted Barron to a preliminary hearing setting for the instant matter on February 16, 2005. Appellant and Barron were to be segregated from Penate. However, on the way to the hearing, Barron walked past Penate as Penate was standing against a wall with guards from the California Youth Authority. Barron stopped and made eye contact with Penate and moved toward him. Penate cowered, and Barron made a comment to him in a very low voice. Penate nodded his head and said, “I’m not saying nothing, I’m not saying nothing.”
After learning of the encounter between Barron and Penate, Detective Aldecoa interviewed Penate at juvenile camp on March 23, 2005. Penate told the detective that the incident was “no big deal.” He said that Barron had told him that he was locked up with Penate’s “homeboy Listo.” Although Penate had previously been cooperative, Penate told the detective during this interview that he no longer wanted to testify. He said that he feared Barron was “cliqued up with the Mexican Mafia,” and Penate did not want Barron to retaliate against him or his family. Penate said his mother had told him not to get involved.
At appellant’s trial, Penate testified that he was at home asleep when the shooting occurred. He said he did not hear about the shooting until two days afterward. Penate denied numerous statements of his that had been attributed to him by other witnesses. At the time of trial, Penate was in custody for a carjacking. Penate’s attorney in that matter was called to testify that he had not had contact with the prosecutor or detectives about the instant case. Penate did not receive any special treatment in the carjacking matter, and the sentence Penate received was solely the judge’s decision.
Detective Steven Skahill of the Los Angeles County Sheriff’s Department was a member of the department’s gang unit assigned to the Industry station. He testified as the People’s gang expert. One of the largest gangs in the area he covered was the Puente gang. The East Side Dukes, the Townsman gang and the Lil Hill gang were the largest gangs on the east side of the area. The Puente gang was also called Puente Trece or P-13, and its roots were in the City of La Puente.
Puente was considered a criminal street gang and was involved in various types of criminal behavior, including fighting rivals for turf, the transportation and sale of narcotics, robberies, car thefts, drive-by shootings, and murders. Detective Skahill described Puente’s common symbols and tattoos. The gang had cliques named for various streets. “PST” would refer to Perth Street. Puente’s rivals included the Lil Hill gang. The East Side Dukes were also rivals of Lil Hill. According to Detective Skahill, it was not uncommon for a Puente member to be a friend of an East Side Dukes member. The Lil Hill gang was a deadly gang that was an offshoot of the Townsman gang. Detective Skahill had investigated murders, shootings, robberies, car thefts, possession of firearms, and drug trafficking crimes by Lil Hill members.
Detective Skahill testified that gangs benefit from criminal activities. Robberies and drug sales enable gang members to purchase weapons and cars and to “party.” Crimes allow an individual gang member to gain notoriety. Their reputations are known even in prison.
Detective Skahill testified that it was not unheard of for members of two friendly gangs to commit a mutual crime. If gang members from Puente and East Side Dukes jointly killed Lil Hill gang members, both gangs would benefit by eliminating a rival. They would also earn notoriety and respect for themselves and would see their status elevated in the gang. Moreover, because Lil Hill’s territory was sandwiched between the East Side Dukes’s territory and Puente’s territory, a shooting of a Lil Hill gang member would create a “squeeze effect” and cause Lil Hill to go underground. This would open up more territory for the Puente and East Side Dukes to conduct their drug trade business. Both gangs would benefit, as would the individual gang members.
Detective Skahill stated that members from different gangs in the area knew each other and knew each other’s cars. Gang members might purposely set out to commit crimes, or an incident could occur spontaneously. It was possible for a Puente member and an East Side Dukes member to take the opportunity to engage in gang rivalry if they came across Lil Hill gang members. When gang signs are thrown, gang members do not want to lose face and would want to meet the challenge. They are likely to start shooting.
Detective Skahill testified that, once a crime is committed, the gang rule is that one does not “rat.” Gang members exact their own revenge. Victims of gang crimes often told Detective Skahill about a crime, but they would not testify. Testifying could cost a gang member his life. Detective Skahill believed that the courthouse incident between Barron and Penate was an instance of witness intimidation. Barron could have been threatening to hurt Listo, or to tell Listo that Penate was “ratting.” Listo might put the word out on the street that Penate was a rat.
Detective Skahill knew Barron but had not had personal contact with appellant. The detective met Barron and Barron’s brother in 1990 or 1991. Barron was a member of East Side Dukes known as “Puppet.” Barron had numerous tattoos showing his gang affiliation. One tattoo referred to “Tiny’s,” which was a former clique of the gang. Photographs from August 2003 and July 2004 showed that Barron had added tattoos during the interim, which meant he was an active gang member.
Detective Skahill testified that appellant’s various tattoos indicated he was a member of the Perth Street clique of the Puente gang. He had tattoos on his neck, under his eye, and on the back of his head. The latter tattoo was visible when appellant’s head was shaved.
Detective Skahill had personally conducted or assisted investigations in which Puente 13 gang members had committed murders, attempted murders by firearm, stabbings, bludgeonings, drive-by shootings, shooting at vehicles, shooting at persons, sale of narcotics, car theft, carrying guns, and street robberies using firearms, knives, and fists. Detective Skahill testified regarding convictions for specific crimes committed by two Puente gang members. The first crime was an assault with a deadly weapon on October 17, 2003, and the second was an attempted murder on October 20, 2003. Both crimes were gang-related. Detective Skahill had personally investigated and assisted the investigations of crimes committed by members of East Side Dukes for the benefit of the gang. The crimes included murders, drive-by shootings, street robberies, narcotic sales, car thefts, and assaults with deadly weapons such as firearms, knives, and bludgeons. Detective Skahill testified about an April 11, 2002 assault involving a drive-by shooting by an East Side Dukes member. The gang member was convicted and a gang allegation was found true.
Detective Skahill did not believe any particular gang controlled Shadow Oak Drive west of Nogales Street in West Covina. He stated that gang crimes can occur in neutral territory as well as in another gang’s territory. He believed that, assuming an East Side Dukes member and a Puente member were friends, they would be willing to commit a crime together for the benefit of their respective gangs in order to gain notoriety. When a person calls himself a “hard core” gang member, it means that the person has proven himself worthy of being a gang member. Hard core gang members are those who put in work and maintain the notoriety and legend of the gang.
When given a hypothetical based on the facts of the initial encounter in the instant case, Detective Skahill stated that the occupants of the truck would believe they had been challenged. If the persons from Puente and East Side Dukes turn around and follow the Lil Hill gang car, this indicates that they are going to “reply to the challenge and catch up with the people that issued the challenge and, you know, do something about it.”
Detective Skahill said that gang members share information, and it is common for them to know if someone in the car with them has a gun. They share the information so that if something happens, there is a gun in the car to protect themselves “in case a person can’t get to it right away or they have to hand it off back and forth.” Referring to the People’s hypothetical, Detective Skahill stated that the driver who turned the truck around would know why he was turning around and what was going to happen. He would know because gang members “don’t get caught slipping.” When they are in a rival area or an area with which they are not familiar, they “have some ways of protecting themselves.”
According to Detective Skahill, both a shooter and a driver get credit on the streets for the crimes. This would be true even if the two are from different gangs. In a hypothetical in which Lil Hill is the enemy of both East Side Dukes and Puente, if the two persons in the truck did not return the challenge, both gang members would lose face in front of their respective gangs. They must take charge of the situation and do something to retaliate. If there is a gun in the car they are “going to get payback on the guys that just fronted them off to save their own face.” Detective Skahill had personally investigated incidents where a challenge was issued by one gang and the other gang had to respond or lose face. The situation would escalate to the point where someone who had a gun would use it to shoot the people in the other vehicle. If word got out that the Lil Hill gang members challenged people from Puente and the East Side Dukes and the challenge was not met, “then they’re going to get punked.”
Continuing his comment on the hypothetical, Detective Skahill stated that, if the truck turned around and pulled up next to the Lil Hill car, and the passenger shot at the members of Lil Hill, killing one and injuring another, and if the truck then left the scene, such a crime was committed for the benefit of, at the direction of, or in association with both the Puente gang and the East Side Dukes gang. Detective Skahill stated that both the driver and the passenger in the vehicle that turned around would share credit. Also, assuming there were three people in the yellow car and two people in the truck, “the person doing the U-turn knew what was going to happen because he’s doing a U-turn, he’s following a car that has more people than him. Why would you follow a car that has more people than you unless you’re willing to engage in some kind of fighting, shooting, whatever is going to happen. They already know there’s gang members in the car. Rival gang members, they’ve already shown that.”
Detective Skahill was of the opinion that the gang members who committed the crime would get the word out on the street. They would also want to find out if they were notorious and they would want other gang members to know they were involved. By being notorious, they move up in stature and become known as hard core.
II. Defense Evidence
Barron’s wife, Sally Morales, testified that Barron was staying with her at a motel on the night of the shooting, September 18, 2004. They went to the motel to get away from the crowded house where they were living. She could not remember what day of the week it was. She did not tell anyone she was with Barron that night until February 2006 when she spoke with the defense investigator, although Barron had been arrested in 2004.
Steven Strong, a defense investigator, testified as a gang expert on behalf of appellant. He was of the opinion that members of two different gangs would almost never commit a crime together to retaliate for a show of disrespect. He had known many cases where members of different gangs have committed a crime together, but generally it was not a gang-related crime. Rather, it was something on a personal basis or business basis, such as narcotics. Retaliation for disrespect with a member of a different gang does not show people in other gangs that you are very strong. Also, the individual gangs might take it as disrespect that one of their members helped another gang commit a crime. There would also be a problem in assigning credit for the crime.
DISCUSSION
I. Sufficiency of the Evidence in Support of Counts 1 Through 4
A. Appellant’s Argument
Appellant contends there was insufficient evidence to support the jury’s finding that appellant knew Barron possessed a firearm on the night of the shooting and, therefore, that he aided and abetted Barron in committing the crimes charged in counts 1 through 4. Appellant asserts that his behavior, or lack thereof, also showed he was not only unaware of what Barron planned to do, but that he did not want to join in Barron’s acts. The circumstantial evidence that appellant made a U-turn prior to the shooting, combined with Detective Skahill’s generalizations about gang behavior, failed to sufficiently support the jury’s finding in this unusual case. According to appellant, his convictions should be set aside.
B. Relevant Authority
The standard of appellate review for sufficiency of evidence was articulated in People v. Johnson (1980) 26 Cal.3d 557. When an appellate court seeks to determine whether a reasonable trier of fact could have found a defendant guilty beyond a reasonable doubt, it “‘must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’” (Id. at p. 576.) The court does not limit its review to the evidence favorable to the respondent, but must resolve the issue in light of the whole record and must determine whether the evidence of each essential element is substantial. (Id. at p. 577.) “[S]ubstantial evidence” is evidence that is “reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (Id. at p. 578.)
Given this court’s limited role on appeal, appellant bears an enormous burden in arguing insufficient evidence to sustain the verdict. If the verdict is supported by substantial evidence, we are bound to give due deference to the trier of fact and not retry the case ourselves. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) “Reversal on this ground is unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’” (People v. Bolin (1998) 18 Cal.4th 297, 331.)
C. Evidence Sufficient
Reviewing the evidence in light of the foregoing principles we find that the evidence is sufficient to sustain the jury’s verdict. Because the uncontradicted evidence was that appellant did not personally shoot the victims, we must determine whether there is sufficient evidence to sustain his conviction as an aider and abettor.
A person aids and abets the commission of an offense “when he or she, 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 the offense[;] (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime.” (People v. Beeman (1984) 35 Cal.3d 547, 561; People v. Gibson (2001) 90 Cal.App.4th 371, 386.) The test of whether a person aided or abetted in the commission of an offense is “whether the accused in any way, directly or indirectly, aided the perpetrator by acts or encouraged him by words or gestures.” (People v. Villa (1957) 156 Cal.App.2d 128, 134.) “[I]t is not necessary that the primary actor expressly communicate his criminal purpose to the defendant since that purpose may be apparent from the circumstances.” (People v. Nguyen (1993) 21 Cal.App.4th 518, 531–532.) Whether a person is an aider and abettor may be shown by circumstantial evidence and is ordinarily a question of fact for the trier of fact (In re Lynette G. (1976) 54 Cal.App.3d 1087, 1094; People v. Herrera (1970) 6 Cal.App.3d 846, 852). A defendant’s presence at the scene may be considered along with other factors, such as “companionship, and conduct before and after the offense,” to determine that a person is an aider and abettor. (In re Juan G. (2003) 112 Cal.App.4th 1, 5.)
The circumstances presented here provide sufficient evidence to support the finding that appellant aided and abetted the crimes committed against the victims in the yellow taxi. Appellant was not only present at the scene, but he facilitated completion of the crimes by turning his truck around to follow the taxi as it left the park, accelerating to catch up with the taxi, and pulling alongside so that his companion could fire from the truck window at the occupants of the other car. There was also circumstantial evidence that appellant stopped the truck. Penate’s statements to various persons indicated that Cortes pulled over and stopped the car when he was shot. Appellant would have had to stop the truck he was driving to remain on the spot long enough for Barron to aim and fire at Hernandez as he ran away from the taxi. Appellant then drove away from the scene and facilitated Barron’s escape. Later that day appellant drove Barron to find out what was known in the community about the shooting.
Although appellant claims he had no knowledge that Barron was armed on the night of the shooting, appellant told police that he knew Barron possessed a weapon, and appellant had handled the weapon on a prior occasion. Appellant himself stated that the Lil Hill gang was a dangerous gang, and he feared the occupants of the taxi might have guns. This is circumstantial evidence that appellant would not have engaged in a verbal battle with members of the gang, turned around and pursued them, and then pulled up alongside them if he did not know that Barron was able to meet gunfire with gunfire.
Appellant’s reference to the “unusual” nature of this case suggests that he views his and Barron’s membership in different gangs as a major factor in diminishing the value of the circumstantial evidence in this case. Although appellant and Barron were in different gangs, the evidence showed that they knew each other well. They were stopped together in 2003 in a vehicle with women and children aboard, suggesting a close social relationship. At that time, appellant was carrying Barron’s identification in his shoe. Adam Chavez, an East Side Dukes member, told police he had seen appellant and Barron together on a date that appeared to be around the time of the shooting. Barron had the confidence in their relationship to visit appellant’s home at night or in the early morning hours and then to ask for a ride home. Adam Chavez’s presence in the Cruz attic indicates that appellant was comfortable with members of the East Side Dukes gang, or at least that his gang affiliation did not prevent him from making certain close friends in that gang. In addition, appellant and Barron went together to visit Monica to find out what she knew on the evening of the day the shooting took place. Finally, the board found in appellant’s garage contained graffiti with gang writing from appellant’s gang and Barron’s gang.
The evidence also showed that only the Hurley Street clique in the Puente gang did not get along with the East Side Dukes and that the two gangs shared a common enemy—the Lil Hill gang. Any rivalry between East Side Dukes and Puente appeared to take a backseat to their shared hatred of Lil Hill. As explained by Detective Skahill, this shared hatred would probably prevail over any gang rivalry between Puente and East Side Dukes until Lil Hill was somehow defeated. Then Puente and East Side Dukes could become full-fledged enemies again. Appellant himself stated he was a hardcore gang member, and he bore several gang tattoos. And although Barron’s wife claimed he did not gangbang anymore, Barron was heavily tattooed and had acquired more tattoos between 2003 and 2004.
We conclude that substantial circumstantial evidence supports the jury’s finding that appellant knew that Barron was armed and that he aided and abetted the crimes committed against the Lil Hill gang members.
II. Sufficiency of the Evidence in Support of Gang Allegation
A. Appellant’s Argument
Appellant first contends that, since there was insufficient evidence he knew that Barron was armed, there was insufficient evidence he intended to assist Barron in “felonious criminal conduct” (§ 186.22, subd. (a)) as opposed to merely intending to yell expletives at the taxi. More importantly, he argues, there was no evidence he specifically intended to benefit a street gang. Other than making the U-turn, there was nothing appellant said or did that indicated his gang affiliation.
B. Relevant Authority
Subdivision (b) of section 186.22 provides enhanced punishment for certain gang-related crimes. “‘[T]o subject a defendant to the penal consequences of [section 186.22, subdivision (b)], the prosecution must prove that the crime for which the defendant was convicted had been “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) . . . .)’” (People v. Hernandez (2004) 33 Cal.4th 1040, 1047 (Hernandez); People v. Gardeley (1996) 14 Cal.4th 605, 616–617 (Gardeley).)
“‘In addition, the prosecution must prove that the gang (1) is an ongoing association of three or more persons with a common name or common identifying sign or symbol; (2) has as one of its primary activities the commission of one or more of the criminal acts enumerated in the statute; and (3) includes members who either individually or collectively have engaged in a “pattern of criminal gang activity” by committing, attempting to commit, or soliciting two or more of the enumerated offenses (the so-called “predicate offenses”) during the statutorily defined period. (§ 186.22, subds. (e) & (f).)’” (Hernandez, supra, 33 Cal.4th at p. 1047; Gardeley, supra, 14 Cal.4th at p. 617.)
The substantial evidence standard of review also applies to section 186.22 gang enhancements. (People v. Augborne (2002) 104 Cal.App.4th 362, 371.)
C. Evidence Sufficient
With respect to appellant’s first argument— that there was insufficient evidence he intended to assist Barron in “felonious criminal conduct” because there was insufficient evidence he knew Barron was armed—as the previous section indicates, we disagree. Given that appellant expressed his fear to officers that the taxi occupants could shoot at him and Barron, it is reasonable to infer that he knew Barron was armed and intended to aid him in either shooting at or defending against the taxi’s occupants as opposed to merely intending to yell expletives at them.
Appellant’s second argument—that there was no evidence he specifically intended to benefit a street gang because nothing he said or did indicated his gang affiliation—is also without merit. There was substantial evidence that the encounter between the occupants of the truck and the occupants of the taxi was gang-related. The incident began when the two vehicles passed each other and gang-related shouts and insults were exchanged. The fact that appellant made a U-turn to follow the taxi leads to the inference that appellant intended to prolong the encounter for no other than a gang-related reason.
Appellant does not dispute the criminal-gang status of Puente and East Side Dukes; therefore, we do not address that aspect of the gang allegation. (§ 186.22, subds. (e), (f), (j).)
If it is unlikely, as appellant claims, that two members of separate gangs would commit a crime to benefit both of their gangs, it is even less likely that a Puente gang member would commit a crime to benefit only East Side Dukes. Appellant was clearly in agreement with Barron that a response to the Lil Hill challenges was called for. The response was a concerted effort by appellant, a Puente member, and Barron, an East Side Dukes member, against their common enemy, Lil Hill. There is no indication of a personal motive on either Barron’s or appellant’s part. Gang rivalry was the paramount theme of the encounter, and appellant’s argument that there was a lack of substantial evidence that he aided and abetted Barron for the benefit of his gang is without merit.
III. Detective Skahill’s Testimony as Proof of Gang Allegation
A. Appellant’s Argument
Appellant contends that Detective Skahill’s testimony lacked sufficient foundation and relied on inflammatory stereotypes and out-of-court testimonial statements. Appellant claims Detective Skahill’s testimony exceeded the scope of his expertise because of the unique circumstances of this case. His generalizations inflamed the jury and deprived appellant of due process and a fair trial. According to appellant, Detective Skahill also usurped the jury’s function by determining an ultimate fact of the case.
We address appellant’s claim that Detective Skahill relied on testimonial out-of-court statements in the following section, since appellant raised this as a separate issue.
B. Relevant Authority
A trial court’s admission of evidence, including gang expert testimony, is reviewed for abuse of discretion. (People v. Carter (2003) 30 Cal.4th 1166, 1194; People v. Olguin (1994) 31 Cal.App.4th 1355, 1369.)
In order to assist the trier of fact, the culture and habits of criminal street gangs are proper subjects for an expert’s opinion. (Gardeley, supra, 14 Cal.4th at p. 617; People v. Valdez (1997) 58 Cal.App.4th 494, 506 (Valdez).) An expert may base his or her testimony on reliable material not admitted into evidence or even inadmissible material as long as it is of a type reasonably relied upon by experts in that particular field. (Gardeley, supra, at p. 618.) A properly qualified gang expert may, where appropriate, testify to a wide variety of matters, including but not limited to, whether and how a crime was committed to benefit or promote a gang; the motivation for a particular crime; a gang’s culture, habits, and territory; and rivalries between gangs. (People v. Killebrew (2002) 103 Cal.App.4th 644, 656–657 (Killebrew), and authorities cited therein.) Such testimony may address the ultimate issue in the case (Evid. Code, § 805; Killebrew, supra, at p. 651) and may be based on hypothetical questions derived from the facts of the case (Gardeley, supra, at p. 618).
C. Foundation Sufficient
We disagree with appellant’s claim that Detective Skahill’s testimony lacked foundation. As stated in the preceding paragraphs, the use of experienced police officers as gang experts on such issues as gang culture and psychology, as well as on such issues as motive and intent has been consistently upheld. (See, e.g., Gardeley, supra, 14 Cal.4th at p. 619; Killebrew, supra, 103 Cal.App.4th at pp. 656–657 [listing the various topics upon which expert opinion testimony on gangs is properly admitted].)
In People v. Gonzalez (2006) 38 Cal.4th 932, 949, the California Supreme Court stated that, “[a] gang expert’s overall opinion is typically based on information drawn from many sources and on years of experience, which in sum may be reliable.” We agree with Gonzalez and are moreover bound by the decisions of the California Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Addressing appellant’s specific complaints, we note that he insists that, because appellant and Barron were from two different gangs, the scope of Detective Skahill’s expertise was exceeded. We disagree. Detective Skahill did not testify to specific crimes committed by pairs or groups of gang members from different gangs for the benefit of their gangs, but he stated that such crimes were possible. Indeed, such collaboration is not unprecedented. In Valdez, supra, 58 Cal.App.4th 494, a gang expert testified that, although Norteno gangs had historically fought each other, they had agreed not to do so in order to fight a common enemy. (Id. at p. 502.) The expert was of the opinion that the group of gang members in that case, in which a murder was committed, consisted of members of seven different gangs and that the crime was for the benefit of, in association with or at the direction of all seven gangs. (Id. at pp. 499, 503–504.) The Valdez court held that, precisely because the group of gang members was so diverse, the issue of how they could have been acting for the benefit of a street gang presented matters far beyond the common experience of the jury and justified expert testimony. (Id. at pp. 508–509.)
Similarly, in People v. McDaniels (1980) 107 Cal.App.3d 898 (McDaniels), the gang expert testified that “it was unusual for various Cripts [sic] factions to band together when taking retaliatory action, although he had experienced situations where such alliances had been made.” (Id. at p. 902.) In that case, four Crips gang members had gone to an area of a rival gang and gunned down a young man in the street. (Id. at pp. 900–901.) The court rejected the defendant’s arguments regarding the expert’s qualifications and use of hearsay sources as a basis for his opinion. (Id. at pp. 904–905.)
Given that Detective Skahill’s testimony, like the testimony in Valdez and McDaniels, was based on his own experiences and the acceptable sources outlined in Gardeley, his opinion on appellant’s and Barron’s cooperation for the benefit of both of their gangs was entitled to the same weight as the other portions of his opinion. It did not, therefore, exceed his expertise. Appellant’s own gang expert, Strong, testified upon viewing the board with graffiti found at appellant’s that “whoever possessed the board obviously had a relationship or an association with both East Side Dukes and Puente 13. It would depend on the individual who had it and the circumstances, but it would be obvious to me that they had some kind of association or relationship with both groups.”
In addition, proof that a defendant committed a crime in association with a gang member is sufficient to establish that the gang enhancement applies, without regard to a specific gang loyalty. (People v. Morales (2003) 112 Cal.App.4th 1176, 1198.) Appellant fails to pay heed to the language of section 186.22, subdivision (b), which requires only that a person act in “association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members” to be convicted. The statute does not provide that a person must act in association only with his own gang. The purpose of the statute is to punish those who associate themselves with any gang with the intent to assist in any criminal activity by that gang’s member or members.
Moreover, Detective Skahill did not usurp the jury’s function by deciding an ultimate fact of the case. Detective Skahill’s opinion is distinguishable from the opinion found to be improper in Killebrew, supra, 103 Cal.App.4th 644. In that case, the gang expert testified that “when one gang member in a car possesses a gun, every other gang member in the car knows of the gun and will constructively possess the gun.” (Id. at p. 652, fn. omitted.) Killebrew reasoned that such testimony was improper because it went to the “subjective knowledge and intent of each occupant in each vehicle,” a matter “much different” than the general expectations of gang members when confronted with specific actions. Because the expert’s testimony was the only evidence the People offered on the elements of the crime the opinion “did nothing more than inform the jury how [the expert] believed the case should be decided” and was an improper opinion on the ultimate issue. (Id. at p. 658.) Clearly, Killebrew does not preclude the prosecution from eliciting expert testimony that provides the jury with information from which it may infer the motive for a crime or the perpetrator’s intent. Rather, Killebrew prohibits an expert from testifying to his or her opinion of the knowledge or intent of a defendant on trial. (Ibid.)
The testimony challenged here did not consist of an opinion about appellant’s own knowledge or intent. Instead, Detective Skahill testified in general terms and gave an opinion based upon his knowledge of gang norms and culture. He explained that retaliation would have a favorable effect on the Puente and East Side Dukes gangs and that a failure to respond to the challenge would have a negative effect. When given a hypothetical in which a truck turns around under the circumstances of this case, Detective Skahill responded affirmatively when asked whether the driver knew why he was turning around and what was going to happen. This is unlike the testimony in Killebrew in which the expert made a pronouncement that when one gang member in a car has a gun, every other gang member in the car knows of the gun and will constructively possess the gun. The latter testimony reached beyond the facts of that particular case and also resolved the issue of constructive possession for the jury. On the other hand, Detective Skahill’s testimony was based on a legitimate hypothetical grounded in the evidence and did not constitute a finding of an ultimate fact. It was clear that Detective Skahill was expressing his opinion, and the jury was instructed, as discussed post, that it was not bound by the expert’s opinion and could disregard any opinion it found unreasonable.
Appellant additionally submits that allowing an expert to testify about a hypothetical that closely tracks the evidence is disingenuous. At the same time, he argues that Detective Skahill relied on stereotypes to inflame the jury and deprive appellant of a fair trial. As Killebrew shows us, the nature of a gang expert’s testimony is required to be couched in generalizations or it risks being classified as improper testimony that goes to the ultimate issue in the case. Thus, appellant’s characterization of Detective Skahill’s testimony as consisting of “inflammatory stereotypes” borders on being disingenuous itself. Appellant attempts to disparage Detective Skahill’s generalizations while simultaneously criticizing the detective’s testimony as being too specific to the facts of the case. Furthermore, the defense posed hypothetical questions to the defense gang expert that were no less grounded in the facts of this case. For example, Strong was asked if it was “possible for two people who are friends, maybe they get along and they’re from two rival gangs, say East Side Dukes and Puente 13, is it possible for them to go and, say, commit the murder of somebody in another gang like Lil Hill?”
Finally, we observe that appellant fully cross-examined Detective Skahill, and, as noted, the defense had its own gang expert testify. The jury was permitted to draw its own inferences about appellant’s intent, knowledge, premeditation, and deliberation with respect to the specific charges. CALJIC Nos. 2.80, 2.82, and 2.83 told the jury that it was not bound by an expert opinion, it could disregard any opinion it found was unreasonable, the weight to be given an opinion was for the jury to decide, and the facts of any hypothetical question were not necessarily true. The jury was also told how to weigh the opinion of one expert against that of another.
Appellant’s arguments regarding the nature of Detective Skahill’s expert testimony are without merit, and we conclude there was no violation of his rights to due process, trial by jury, or a fair trial.
IV. Gang Expert’s Testimony and Right to Confrontation
A. Appellant’s Argument
Appellant contends that the admission of Detective Skahill’s testimony, in which he relies on the out-of-court statements of unidentified, alleged gang members to support his belief that appellant intended to assist Barron, violated appellant’s Sixth Amendment right to confront and cross-examine his accusers in light of Crawford v. Washington (2004) 541 U.S. 36 (Crawford) and Davis v. Washington (2006) 547 U.S. 813. Appellant argues that People v. Thomas (2005) 130 Cal.App.4th 1202 (Thomas) should be reevaluated in light of these cases and overturned.
Appellant maintains that the statements made by gang members, which Detective Skahill relied upon and repeated summarily under the guise of gang behavior at trial, were testimonial in nature under the definition set forth by the United States Supreme Court. Therefore, they could not be used against appellant at trial whether or not they supported Detective Skahill’s expert opinion. Appellant argues that the protections of the Sixth Amendment remain despite contradictory rules of evidence. Therefore, because the individuals who made the statements were neither identified nor available for cross-examination, their statements should never have been introduced at trial.
B. Relevant Authority
In Crawford, the United States Supreme Court held that the Sixth Amendment bars “admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.” (Crawford, supra, 541 U.S. at pp. 53–54.) The Supreme Court did not define “testimonial statements,” but noted that certain statements, such as those taken by police officers in the course of an interrogation, could clearly be classified as testimonial in nature. (Id. at pp. 52–53.)
In Davis v. Washington, the Supreme Court held that “[s]tatements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” (Davis v. Washington, supra, 547 U.S. at p. 822, fn. omitted.) The Supreme Court explained that its holding was specific to interrogation scenarios because the statements in Davis v. Washington and Hammon v. Indiana (the companion case decided by Davis v. Washington) were the result of interrogations, which sometimes generate testimonial responses. The court did not intend to imply that statements that are not the product of interrogations are a fortiori nontestimonial. (Ibid. at fn. 1.)
Thomas held that “Crawford does not undermine the established rule that experts can testify to their opinions on relevant matters, and relate the information and sources upon which they rely in forming those opinions. This is so because an expert is subject to cross-examination about his or her opinions and additionally, the materials on which the expert bases his or her opinion are not elicited for the truth of their contents; they are examined to assess the weight of the expert’s opinion. Crawford itself states that the Confrontation Clause ‘does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.’” (Thomas, supra, 130 Cal.App.4th at p. 1210.)
C. No Violation of Right to Confrontation
We agree with the reasoning in Thomas. This court recently held in People v. Cooper (2007) 148 Cal.App.4th 731 (Cooper) that the trial court erroneously excluded an expert’s testimony on the ground that her opinion was to some extent based on the partially testimonial interviews of a person later determined to be a victim of theft from an elder or dependent adult. (§ 368, subd. (e).) (Cooper, supra, at pp. 734, 746–747.) We stated that, “[h]earsay relied upon by experts in formulating their opinions is not testimonial because it is not offered for the truth of the facts stated but merely as the basis for the expert’s opinion.” (Id. at p. 747.) We determined that “Crawford was concerned with the substantive use of hearsay evidence that was admitted within an exception to the hearsay rule. It did not suggest that the confrontation clause was implicated by admission of hearsay for nonhearsay purposes.” (Ibid.)
Accordingly, as an expert witness, Detective Skahill could properly testify as to the information on which his opinion was based, even if the information was hearsay, provided it was reliable hearsay. (Evid. Code, § 802; Gardeley, supra, 14 Cal.4th 605, 618–619.) Appellant made no showing that Detective Skahill’s testimony was founded on unreliable information from gang members. In fact, the defense gang expert, Strong, testified that his information was based “99 percent” on knowledge he acquired “from the gang members themselves.” Appellant’s argument is without merit.
V. Cross-Examination of Coroner
A. Appellant’s Argument
Appellant contends that exclusion of Hernandez’s toxicology reports deprived appellant of his ability to adequately cross-examine his accusers, to provide context to the shooting, and to present a theory of defense. Appellant asserts that the trial court abused its discretion in excluding the evidence and the error was not harmless.
According to appellant, the trial court underestimated the probative value of the coroner’s toxicology report and overestimated its prejudicial effect. Appellant argues that, had Hernandez not been under the influence of methamphetamine, which caused his blood to pump more quickly, he would have had sufficient time in which to tie a tourniquet and save his own life. The possibility that appellant was not the sole cause, or even a cause at all, of Hernandez’s death was extremely probative exculpatory evidence. The toxicology evidence also would have corroborated Penate’s statements that Cortes and Hernandez were doing drugs at the park. The prejudice was minimal, since Hernandez was dead and his credibility would not be undermined.
B. Relevant Authority
Only relevant evidence is admissible at trial. (Evid. Code, § 350.) Relevant evidence is that which has “any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Id., § 210.) The trial court has the duty to determine the relevance and thus the admissibility of evidence before it can be admitted. (Id., §§ 400, 402.) We review the trial court’s determination as to admissibility that turns on relevance for abuse of discretion. (People v. Waidla (2000) 22 Cal.4th 690, 717.)
Evidence Code section 352 gives the trial court the discretion to exclude relevant evidence if the probative value of the evidence is substantially outweighed by its prejudicial effect. We will not disturb the trial court’s exercise of its discretion under Evidence Code section 352 unless the court has abused its discretion. (People v. Minifie (1996) 13 Cal.4th 1055, 1070.)
Evidence Code section 352 provides: “[t]he court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”
C. Proceedings Below
Prior to the testimony of Dr. Susan Selser regarding Hernandez’s autopsy, the prosecutor asked the court to exclude on relevance grounds the evidence that Hernandez had .66 micrograms per milliliter of methamphetamine in his system. He stated that the effect of methamphetamine was not relevant because Hernandez’s statements or perceptions were not at issue. The prosecutor told the court that Dr. Selser would testify that she did not know how the methamphetamine might have affected Hernandez’s death because she did not have all the facts. The prosecutor stated that the information might confuse the jury and cause them to speculate on things that were not before them and that did not pertain to the witness, Dr. Selser.
Defense counsel believed the evidence of the methamphetamine was circumstantial evidence that Hernandez might be a Lil Hill gang member. It might also explain why Hernandez threw a bottle at appellant’s pickup.
The trial court asked if there would be testimony about the effect of the specific quantity of methamphetamine on the person’s conduct, and the prosecutor replied there would not. The court stated, “I think that’s the issue of speculation.” Counsel for Barron stated that there was “also amphetamine as .04” and Hernandez had a bindle in his navel. She stated that it was common knowledge that methamphetamine makes a person bleed more quickly. The court replied that it was not common knowledge, and it doubted the jury would know that.
Barron’s counsel also stated that there was testimony that drinking and drug use occurred that night, and the proposed evidence was relevant to Penate’s perception and credibility. The prosecutor pointed out that counsel could cross-examine Penate on that issue and argue it to the jury but there was no connection to Hernandez who was not a witness and never gave a statement.
The trial court stated, “I don’t think it’s relevant to all the issues that defense has talked about. Certainly not to the conduct of others, but as to the conduct of Mr. Hernandez, it would have, depending on the level of effect, and I don’t know whether the coroner can testify to that, and if no one else is going to, I’m not sure what the relevance is. I am concerned it just allows the jury to speculate as to what effect it had, but I do see an issue regarding the effect of that quantity of methamphetamine on Mr. Hernandez’s conduct.” The trial court believed the jury would speculate on the impact of the drugs if given information that they could not understand. The court agreed with appellant’s counsel’s suggestion that a hearing be conducted with Dr. Selser under Evidence Code section 401.
Dr. Selser testified that she was not a toxicologist and that she interpreted autopsy toxicology reports solely for the purpose of determining the cause of death. She stated she did not know what a high amount or low amount of amphetamine and methamphetamine would be because the quantities must be interpreted in context. She said she was not qualified to say how the amounts in question would affect a person’s conduct. Dr. Selser stated that, based on the total severance of the popliteal artery and the hemorrhage at the site, she believed the methamphetamine level was probably not significant in terms of cause of death. A stimulant might tend to increase blood pressure or heart rate, but a gunshot wound or physical activity would have the same effect. Dr. Selser stated under cross-examination that she could not exclude the possibility that methamphetamine or amphetamine usage might have hastened Hernandez’s bleeding “so they might not have saved him in time.”
In ruling on the issue, the trial court stated that it did not see the relevance and “[i]t would allow speculation to bring it in if we don’t have something more definite as to the impact on either cause of death or the conduct” of Hernandez. Counsel for Barron reminded the trial court that Dr. Selser had said that, in some individuals, certain doses can be fatal and that she could not exclude the possibility that the methamphetamine might have hastened the death. The trial court replied, “That’s called speculation, and you’re talking about a few moments of delay in the shooting incident. There were naturally moments of delay before the assaulting vehicle left the scene.”
D. Evidence Properly Excluded
We conclude that the trial court properly excluded the evidence of the toxicology report, whose relevance was obviated by its speculative nature. Furthermore, the evidence was properly excluded under Evidence Code section 352, since it would have led to an undue consumption of time, misled the jurors, and caused confusion regarding the issues due to its extremely speculative nature.
Contrary to appellant’s assertions, Dr. Selser’s testimony definitely established that the cause of death was the severance of the popliteal artery and the bleeding it caused. It is true that Dr. Selser stated there was no way to exclude completely the possibility that elevated blood pressure and a rapid heartbeat may have resulted in death occurring a minute or two earlier than if these circumstances did not exit. However, she repeatedly stated that being shot at and engaging in physical activity (such as running) would have the same effects. Thus, it was impossible for the doctor to measure the effect on Hernandez of the stated amount of methamphetamine, and the defense offered no expert witness on the subject. In short, the evidence was probative of nothing that was material to the issues in this case, and the potential for prejudice in the form of juror speculation was great. Appellant’s suggestion that Hernandez could have, but for his drug use, had sufficient time to apply a tourniquet that could have saved his life conjures up the possibility of at least three mini-trials. We believe it would have been an abuse of discretion for the trial court to allow evidence of the quantity and possible effects of the drugs in Hernandez’s body. For the same reasons, we conclude there was no constitutional violation. (See People v. Cudjo (1993) 6 Cal.4th 585, 611–612.)
VI. Cumulative Error
A. Appellant’s Argument
Appellant contends that the cumulative effect of all the errors demonstrates that a miscarriage of justice occurred. He claims he was deprived of his right to a fair trial, to confront and cross-examine his accusers, to present a defense, to have a jury consider his defense, and his right to due process. Taken together, he argues, the errors resulted in a fundamentally unfair trial.
B. No Cumulative Error
We find no merit in appellant’s cumulative error argument. Our review of the record assures us that appellant received due process and a fair trial. “Because we have found no errors, his claim of cumulative error fails.” (See People v. Seaton (2001) 26 Cal.4th 598, 639; People v. Bolin, supra, 18 Cal.4th at p. 335.)
VII. Counts 2, 3, and 4 and Section 654
A. Appellant’s Argument
Appellant contends that count 2 (the attempted murder of Cortes), count 3 (the assault on Penate) and count 4 (shooting at an occupied motor vehicle) arose from a single altercation between the occupants of the pickup and the taxi and were incident to the sole objective of Barron’s desire to shoot at and kill the taxi driver, Cortes. One of the shots struck Cortes in the face (count 2) and the remaining shots hit the taxi and happened to constitute an assault on Penate in the backseat (count 3). According to appellant, punishment on count 4 must be stayed pursuant to section 654.
B. Relevant Authority
“‘Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.’” (People v. Latimer (1993) 5 Cal.4th 1203, 1208, quoting Neal v. State of California (1960) 55 Cal.2d 11, 19.)
C. Punishment on Count 3 Must Be Stayed
We conclude that, since the offense in count 4 was not committed against a different victim than the victims in counts 2 and 3, punishment on count 3 must be stayed. As stated in People v. Garcia (1995) 32 Cal.App.4th 1756, 1784 (Garcia), “[w]here one person is the victim of both a shooting at an occupied motor vehicle and a simultaneous assault, the trial court can impose an unstayed sentence for one or the other, but not for both.”
In Garcia, the defendant approached a car stopped at a stop sign and ordered the occupants, four men, to get out. (Garcia, supra, 32 Cal.App.4th at p. 1762.) After robbing and attempting to rob the men, he told the victims to get back in the car. (Id. at p. 1763.) As the car pulled away, he fired three or four shots and hit the car. (Ibid.) Along with firearm enhancements, the defendant was convicted and sentenced for robbery of three of the victims, attempted robbery of the fourth, shooting at an occupied motor vehicle, and assault with a firearm on all four victims. The trial court stayed the defendant’s sentences for all but one of the assaults—the assault on the driver, Verdin. (Id. at pp. 1764–1765.)
On appeal the defendant argued that imposing unstayed sentences on the crime of shooting at an occupied motor vehicle and the assault on Verdin violated the prohibition against multiple punishment under section 654. (Garcia, supra, 32 Cal.App.4th at p. 1780.) The Garcia court pointed out that there is a “‘multiple victim’” exception to section 654 under which, even though a defendant entertains a single objective during an indivisible course of conduct, he may be punished for each crime of violence against a different victim. (Garcia, supra, at p. 1781.) The Garcia court clarified that this did not mean there must be a “‘leftover victim,’” that is, at least one victim of the shooting who was not a victim of a charged assault. (Id. at pp. 1783–1784.) Garcia held that the defendant was properly punished both for the crime of shooting at an occupied motor vehicle, the victims of which were Verdin and three others and for the assault on Verdin, because each crime involved at least one different victim. Therefore, there was no violation of section 654. (Garcia, supra, at p. 1785.)
Following the reasoning of Garcia, we believe appellant cannot be punished for the shooting at an occupied motor vehicle, the assault on Penate, and the attempted murder of Cortes. The crime of shooting at an occupied motor vehicle in this case did not have at least one different victim than the other crimes for which appellant was sentenced in counts 2 and 3. (See People v. Centers (1999) 73 Cal.App.4th 84, 101–102 and cases cited therein.)
People v. Trotter (1992) 7 Cal.App.4th 363 (Trotter), cited by respondent, is distinguishable, since it hinged on whether there was an indivisible course of conduct. In Trotter, the defendant carjacked a taxi and, as he drove on the freeway, turned and fired a shot at a pursuing police officer. (Id. at pp. 365–366.) Approximately a minute later, he fired another shot at the police car. Seconds later, he fired a third shot. (Id. at p. 366.) He was convicted of, inter alia, three counts of assault on a peace officer with a firearm, and he received consecutive terms for two of the assaults. (Id. at p. 365.) The defendant argued that the assaults were all part of a single course of conduct and incidental to one objective—to avoid apprehension. He argued that section 654 prohibited his being punished consecutively for two of the assaults. (Trotter, supra, at pp. 365–366.) The court stated that “[e]ach shot posed a separate and distinct risk” to the police officer and nearby drivers. (Id. at p. 368.) “All three assaults were volitional and calculated, and were separated by periods of time during which reflection was possible.” (Ibid.) Thus, the court found section 654 inapplicable largely because there was time prior to each shot for the defendant to reflect on his next action, and they were separate acts of violence on different occasions that placed different people and officers in danger. (Trotter, supra, at p. 368.)
In the instant case, there was no evidence that each shot fired into the automobile constituted a separate act of violence separated from the other acts by a period of time, however short, during which Barron could reflect on his next action. The shots fired at the vehicle were intended to hit the occupants and did so, except for Penate. Trotter does not apply to the instant case.
“If a trial court violates section 654, the proper remedy on appeal is not reversal of the counts involved, but elimination of the penalty for all but one of them (the one carrying the greatest penalty, if the penalties are disparate), by staying execution of, or simply striking, the terms of imprisonment for all but one of them. [Citations.]” (People v. Davis (1989) 211 Cal.App.3d 317, 323; see In re McGrew (1967) 66 Cal.2d 685, 688.) In this case, under the multiple -- victim exception, punishment must be stayed for only one of these three offenses—that of the assault on Penate, since the offenses in counts 2 and 4 carry greater terms of imprisonment.
DISPOSITION
The judgment is modified to stay the sentence on count 3, the assault on Penate, pursuant to section 654 of the Penal Code. In all other respects, the judgment is affirmed. The superior court is ordered to correct the abstract of judgment accordingly and to forward a corrected copy to the Department of Corrections and Rehabilitation.
We concur: BOREN, P. J., ASHMANN-GERST, J.