Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Los Angeles County, No. TA085639, Kelvin D. Filer, Judge.
Susan K. Keiser, under appointment by the Court of Appeal, for Defendant and Appellant Omar Malik Jefferson.
Rodger Paul Curnow, under appointment by the Court of Appeal, for Defendant and Appellant Gerald Dwayne McCaffee.
Mark D. Greenberg, under appointment by the Court of Appeal, for Defendant and Appellant Darryl Duncan.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters and Ellen Birnbaum Kehr, Deputy Attorneys General, for Plaintiff and Respondent.
TURNER, P. J.
I. INTRODUCTION
Defendants, Omar Malik Jefferson, Darryl Wendall Duncan, and Gerald Dwayne McCaffe, appeal from their convictions arising from a gang related shooting. All three defendants were convicted of first degree murder (Pen. Code, § 187, subd. (a)) and two counts of willful, deliberate and premeditated attempted murder. (§§ 187, subd. (a), 664.) Mr. McCaffe was also convicted of being a felon in possession of a firearm. (§ 12021, subd. (a)(1).) The jury returned gang and multiple firearm use findings which we will discuss as they are pertinent. (§§ 186.22, subd. ((b)(1)(C), 12022.53, subds. (b)-(e)(1).) Defendants raise issues concerning: lesser included offense and reasonable doubt instructions; the admissibility of the taped statement of Alvin Boyd, a gang member, who is the victim alleged in count 3 of the amended information; and sufficiency of the evidence. We asked the parties to address two jurisdictional sentencing contentions. We modify the sentences but otherwise affirm the judgment.
All further statutory references are to the Penal Code unless otherwise indicated.
II. FACTUAL BACKGROUND
In the afternoon of June 17, 2006, Tracy Philpot and her husband, Christopher Blake, were driving in her van near 110th Street and Wilmington Avenue. Ms. Philpot’s 20-year-old daughter, Trenicka, was in the rear seat of the van. As Ms. Philpot turned on Wilmington Avenue, she saw her son, Mr. Boyd, pass her driving a minibike. Ms. Philpot saw a small brown car with tinted windows make a U-turn. Ms. Philpot believed the car was trying to catch up to Mr. Boyd. Ms. Philpot pulled out into traffic to prevent the brown car from reaching her son. The brown car collided with her van. Mr. Blake had been drinking. Mr. Blake got out of the van. However, Ms. Philpot told Mr. Blake to get back inside. Ms. Philpot approached the passenger side of the brown car. Ms. Philpot saw two African-American men in the front seats of the car. Ms. Philpot did not look into the back seat. The men, who appeared to be in their early 20’s, wore white T-shirts, Rolex chains and braids. One of the men had beads in his braids. One of the men wore a black hat with white letters “L.A.” In an attempt to stall them, Ms. Philpot asked the men what they were going to do about her car. After three to five minutes, the car drove away. At trial, Ms. Philpot tentatively identified Mr. Duncan and Mr. Jefferson as the individuals that were inside the brown car.
Ms. Philpot drove back on 110th Street a short time later. When Ms. Philpot drove near 110th and Lou Dillon Streets, she saw a large assembly of people. Ms. Philpot asked if anyone had seen her son, Mr. Boyd, because there were people chasing him. Mary Jackson and her sons, Edward and Christopher Robinson, said they had not seen Mr. Boyd. Ms. Philpot saw Mr. Boyd in the middle of the street on 110th Street between Anzac and Wilmington Streets. Mr. Boyd was stopped talking to another man. Ms. Philpot spoke briefly to Mr. Boyd before driving away. As Ms. Philpot looked into her rearview mirror, she saw the brown car that had crashed into her van. Ms. Philpot yelled to Mr. Boyd and allowed him to drive in front of her van. Ms. Philpot then began “zigzagging” on 110th Street. However, the brown car went around her van. Ms. Philpot then heard what sounded like gunshots. Ms. Philpot then drove in the direction Mr. Boyd had driven on the motorbike. When Ms. Philpot reached 110th and Lou Dillon Streets, she saw people standing around asking, “Where is the ambulance?” Ms. Philpot saw Tyrone Bundley lying lifeless in the street.
For purposes of clarity, later in this opinion, Christopher Robinson will be referred to by his first name.
When Detective Samuel Marullo interviewed Ms. Philpot on June 18, 2006, he showed her a photographic lineup. Ms. Philpot selected Mr. Jefferson’s photo from the display as one of the individuals in the car at the time of the accident. At the preliminary hearing, Ms. Philpot testified that the rear passenger window was halfway down when the accident occurred.
Mr. Blake was likewise interviewed by Detective Marullo. Mr. Blake watched a video recording of his interview. When interviewed by Detective Marullo, Mr. Blake said the front passenger wore a white T-shirt and a chain. The front passenger also had a gap between his teeth. The passenger had a close cut haircut and wore a cap. The passenger told Mr. Blake something to effect of, “Nigger, you seen me.” The driver was an African-American man. Both men were in their late teens or early 20’s. On the video, Mr. Blake said that he heard several gunshots between the time of the accident and when he and Ms. Philpot drove back on 110th Street. Mr. Blake also said he saw the brown car again on 110th Street after he heard the gunshots.
Ms. Jackson was visiting her son, Christopher, in the area of 110th and Lou Dillon Streets at approximately 2 p.m. on June 17, 2006. Ms. Jackson was accompanied by her 8-year-old son, her 24-year-old son, Christopher, and her brother-in-law, Mr. Bundley. Ms. Jackson and her relatives had been standing outside near her car talking for about an hour. As they stood at the corner of Lou Dillon Street, a car drove up. Shots rang out. Ms. Jackson dove on top of her youngest son and fell to the ground. A total of approximately seven shots were fired. Ms. Jackson did not recall what kind of car drove up. The front passenger window was down. Ms. Jackson saw a tall, skinny, man with braids in his hair in the passenger seat. The car stopped near the corner where Mr. Bundley stood. Another shot was fired. When Ms. Jackson got up, she saw Mr. Bundley on the ground. Christopher had also been shot. An autopsy performed on Mr. Bundley’s body revealed that he died as a result of a gunshot wound to the chest that perforated his lungs and aorta. A projectile was recovered from Mr. Bundley’s chest.
Officer Jason Archie accompanied Christopher in the ambulance to the hospital. While in the ambulance, Officer Archie questioned Christopher about the shooting. Christopher said a rusty-colored, four-door car with tinted windows and two male occupants drove up to him and friends standing on the sidewalk. Neither man said anything. The men had dark skin, were clean-shaven and wore black baseball caps and large gold Rolex necklaces. The driver pointed a black semiautomatic handgun out the passenger side window and began shooting. Christopher said he was hit in the leg by the first shot. According to Christopher, Mr. Bundley was shot multiple times thereafter. Christopher admitted he was a member of the local gang. Christopher said he believed the rival gang had done the shooting, but he did not know who the men were. However, Christopher said he got a good look at the men and would recognize them if he saw them again.
Detective Marullo interviewed Christopher at the hospital at about 4:15 p.m. on the day of the shooting. Christopher told Detective Marullo that the car driven by the assailants was a rusty brown, four-door car with tinted windows. Christopher believed in was possibly a 1980’s Chevrolet. Christopher said there were two thin African-American men with medium complexion, age 20 to 23, in the car. Christopher said there were at least three gunshots fired by a passenger from a small handgun. Christopher further stated he believed the assailants were from the rival gang.
When Christopher testified at trial, he stated he could not recall any details of the shooting. Christopher did not know who shot him. Christopher also said he could not describe the car from which he was shot. Christopher admitted that he had been a member of the local gang until 2004. Christopher did not want to testify.
Detective Marullo interviewed Mr. Boyd on August 2, 2006. Detective Marullo had been unable to locate Mr. Boyd prior to that date. Detective Marullo had known Mr. Boyd for several years. They had met when Detective Marullo was a gang investigator when Mr. Boyd’s brother was killed. In a videotaped interview, Mr. Boyd said that he was riding his motor bike on June 17, 2006, when rival gang members began chasing him in a brown Celebrity automobile with tinted windows. Mr. Boyd’s mother was driving behind the brown car. When the brown car returned, Mr. Boyd cut across traffic. The brown car made a U-turn. Thereafter, Ms. Philpot’s van collided with the brown car. Ms. Philpot then caught up with Mr. Boyd to tell him that he was being chased. Soon thereafter, the brown car appeared again and the occupants began shooting at Mr. Boyd. Mr. Boyd warned others at the corner that someone in a brown car was chasing him. However, Mr. Boyd believed they did not take him seriously.
Mr. Boyd said Mr. McCaffe was in the brown car. During the videotaped interview, Mr. Boyd told Detective Marullo Mr. Jefferson was the driver of the car. Mr. Boyd had known Mr. Jefferson for a while. Mr. Jefferson had previously been in the neighborhood. Another individual who had escaped from juvenile hall was lying in the back seat of the car. Mr. Boyd said Mr. McCaffe shot from the rusty brown Celebrity automobile.
During the interview Mr. Boyd said that his sister had been arrested. The arrest involved the theft of Mr. McCaffe’s sister’s chain. Eventually, the charge was dropped against Mr. Boyd’s sister. Mr. Boyd then “got into it” with Mr. McCaffe’s mother. Mr. Boyd told Detective Marullo that after the argument with Mr. McCaffe’s mother, “[T]hey tell me, ‘[Mr. McCaffe] up there with his pistol waiting on you disrespecting his mama.’” Mr. Boyd had “gotten into it” a week earlier with Mr. Jefferson. The dispute arose as Mr. Boyd’s brother had been killed by the rival gang. During the interview, Mr. Boyd was shown two photographic lineups. Mr. Boyd positively identified Mr. McCaffe from the photographs as the individual who shot from the passenger seat of the brown car. Mr. Boyd indicated that Mr. Duncan was in the back seat of the car. Mr. Boyd stated Christopher said Mr. Jefferson was driving the brown car at the time of the shooting. Christopher also said that Mr. McCaffe was in the passenger seat of the car.
At trial, Mr. Boyd denied having identified anyone to Detective Marullo. Mr. Boyd testified he had coached him prior to the interview. During the videotaped interview, he was told what to say. Mr. Boyd admitted that he did not know his conversation was recorded. Mr. Boyd acknowledged that he had to be subpoenaed and arrested before testifying in this case.
Los Angeles County Deputy Probation Officer Jenaro Carrasco was assigned to assist in the apprehension of Mr. Duncan between March and June 2006. Mr. Duncan had escaped from a juvenile facility on March 23, 2006. The Probation Department secured a wiretap on the telephone of Mr. Duncan’s girlfriend, identified by Mr. Carrasco only as Ty. Another wiretap order was secured for a telephone Mr. Duncan was using. Mr. Carrasco and others monitored over 100 “chirp” calls by June 17, 2006, and heard Mr. Duncan’s voice. At approximately 2:30 p.m. on June 17, 2006, Mr. Carrasco heard a call made by Mr. Duncan. A recording of that call was played for the jury at trial. During that phone call, Mr. Duncan was heard to say: “We was trying to get that bitch ass nigga AB, though,... cuz got on that little thing.... That’s we was chasin’ cuz, we was chasin’ cuz, on a, he was on a mini bike, we was chasin’ him for like twenty minutes on [a gang’s turf],... chasin’ the nigga and all that... we went through his hood and we didn’t see the nigga so we just milked the other nigga.”
Mr. Carrasco then contacted the police regarding the content of the phone call. Mr. Carrasco was advised of the shooting at 110th and Lou Dillon Streets. With the use of computers, Mr. Carrasco determined Mr. Duncan was at the Econo Lodge Motel in Inglewood. Mr. Carrasco and three other probation officers went there at approximately 9 p.m. Mr. Carrasco saw the car used in the shootings which are the subject of this case at the Inglewood Econo Lodge. Mr. Carrasco saw a paint transfer on the right front bumper. The motel clerk said Mr. Jefferson had registered in room No. 203. Mr. Jefferson’s signature and driver’s license number were on the registration slip. Mr. Carrasco then arrested Mr. Jefferson and Mr. Duncan.
A mobile phone located in room No. 203 was determined to be the telephone that Mr. Carrasco had been monitoring and produced the call that had been played for the jury. A card holder found in the room contained Mr. Jefferson’s California identification card, which matched the number on the registration form. At the time he was arrested, Mr. Jefferson was wearing a thick Rolex-type gold necklace, a white T-shirt and blue or gray shorts. Mr. Duncan was also wearing a gold Rolex chain and a white “muscle” shirt. Inside a Cheetos bag, which was concealed in a Top Ramen box, Mr. Carrasco found two live.25 caliber rounds. Los Angeles Police Detective Marullo arrived to assist in the arrest. All of the recovered evidence was given to Detective Marullo. Detective Marullo recovered an expended.25 caliber casing under the front passenger seat of the brown Celebrity automobile. A motel security videotape showed Mr. Jefferson checking in at approximately 3 to 3:20 p.m. on June 17, 2006.
On July 6, 2006, Brian Hall heard gunshots. Mr. Hall was waiting for his mother to pick him up. Mr. Hall saw someone running who dropped a gun. Mr. Hall put the gun in his pocket because there were children in the area. Thereafter, Mr. Hall was arrested. The projectiles removed from Mr. Bundley’s body and clothing and a cartridge recovered from the brown Celebrity were fired from the same.25 caliber semiautomatic weapon found on July 6, 2006, in Mr. Hall’s possession. The two live.25 caliber rounds recovered from the Econo Motel were consistent with the expended casings.
Officer Nathan Kouri testified concerning the gang allegations. Officer Kouri was familiar with the local gang and rival gangs in the area of Watts and the nearby housing projects. Officer Kouri identified all three defendants as members of a rival gang. Mr. Duncan, who was identified as a rival gang member by other gang officers, had the letters of the rival gang tattooed beneath his eyes. Mr. Duncan also had rival gang tattoos on his arms. Mr. Jefferson told Officer Kouri that he was a member of the rival gang. Mr. Jefferson also had numerous rival gang tattoos on his arms, back, and under his eye. Mr. McCaffe previously belonged to another rival gang but had associated with Mr. Jefferson’s and Mr. Duncan’s gang since 2001. Mr. McCaffe had numerous rival gang tattoos on his stomach, back, arms, hands and under one eye. Mr. Duncan was the boyfriend of Mr. McCaffe’s sister.
Officer Kouri was aware that the rival gang committed shootings, rapes, murders, robberies, carjackings, narcotics sales, and burglaries in the area. Two of the rival gang members were convicted of felonies—Terrell Barron, carjacking in 2006 and Ronald Ray Thomas, assault with a firearm on a police officer in 2004. Gangs often pass their “gang gun” around for their members’ use and then pass it on or sell it to a different gang after it is used in a shooting.
Officer Kouri defined a “snitch” as someone who cooperates with law enforcement, provides information and testifies in court. Gang members that are considered to be a snitch might be assaulted or killed as a result and would be labeled as such for the rest of her or his life. Victims of gang violence are also prohibited from giving information to the police. Various members of the rival gang were present in the courtroom during both the preliminary hearing and the trial in this matter.
When presented with a fact pattern similar to the evidence in a case, Officer Kouri believed that such a hypothetical shooting would be for the benefit of, at the direction of, and in association with a criminal street gang. Officer Kouri reached that conclusion based upon: his knowledge of the rivalry between the two gangs; the fact that gang members came into rival gang territory; the fact that a rival gang member was shot; and, such a shooting would bring respect to the rival gang.
III. DISCUSSION
A. Instructions
1. The trial court had no sua sponte duty to instruct on assault with a firearm as a lesser included offense of attempted murder
Mr. Jefferson argues that the trial court had a sua sponte duty to instruct on the lesser included offense of assault with a firearm as to the count 2 attempted murder of Christopher. Mr. Jefferson further argues the failure to so instruct deprived him of his federal constitutional right to due process. Mr. Duncan and Mr. McCaffe join the argument. We respectfully disagree.
A trial court is obliged to instruct, even without a request, on the general principles of law which relate to the issues presented by the evidence. (§§ 1093, subd. (f), 1127; People v. Ledesma (2006) 39 Cal.4th 641, 715; People v. Wims (1995) 10 Cal.4th 293, 303; People v. Turner (1990) 50 Cal.3d 668, 690; People v. Grant (1988) 45 Cal.3d 829, 847; People v. Melton (1988) 44 Cal.3d 713, 746; People v. Flannel (1979) 25 Cal.3d 668, 680-681.) When the evidence is minimal and insubstantial, there is no duty to instruct. (People v. Barton (1995) 12 Cal.4th 186, 196, fn. 5; People v. Bunyard (1988) 45 Cal.3d 1189, 1232; People v. Flannel, supra, 25 Cal.3d at p. 684; People v. Mayberry (1975) 15 Cal.3d 143, 151.) Our Supreme Court reiterated: “[T]he existence of ‘any evidence, no matter how weak’ will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is ‘substantial enough to merit consideration’ by the jury. [Citations.] ‘Substantial evidence’ in this context is ‘“evidence from which a jury composed of reasonable [persons] could... conclude[]”’ that the lesser offense, but not the greater, was committed.” (People v. Breverman (1998) 19 Cal.4th 142, 162, quoting People v. Flannel, supra, 25 Cal.3d at pp. 684-685, fn. 12, original italics, and People v. Carr (1972) 8 Cal.3d 287, 294; see also People v. Birks (1998) 19 Cal.4th 108, 118.) The trial court here could reasonably determine that they need not instruct on assault with a firearm as to count 2 because it was not a lesser included offense.
In People v. Montoya (2004) 33 Cal.4th 1031, 1034, our Supreme Court held: “In deciding whether an offense is necessarily included in another, we apply the elements test, asking whether ‘“‘all the legal ingredients of the corpus delicti of the lesser offense [are] included in the elements of the greater offense.’ [Citation.]’” [Citation.] In other words, ‘if a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former.’ [Citation.]” (Accord, People v. Sloan (2007) 42 Cal.4th 110, 117; People v. Reed (2006) 38 Cal.4th 1224, 1227-1228; People v. Lopez (1998) 19 Cal.4th 282, 288; People v. Birks, supra, 19 Cal.4th at pp. 117-118.) In the alternative, the reviewing court looks to the operative information to determine whether the accusatory pleading describes the crime in such a way that if done in the manner alleged the lesser offense must necessarily be committed. (People v. Sloan, supra, 42 Cal.4th at p. 117; People v. Lopez, supra, 19 Cal.4th at pp. 288-289; People v. Toro (1989) 47 Cal.3d 966, 972, overruled on another point in People v. Guiuan (1998) 18 Cal.4th 558, 568, fn. 3; People v. Stewart (2000) 77 Cal.App.4th 785, 795.) An enhancement allegation is not considered in evaluating lesser included offense questions. (People v. Izaguirre (2007) 42 Cal.4th 126, 134; People v. Wolcott (1983)34 Cal.3d 92, 101; In re David S. (1983) 148 Cal.App.3d 156, 159.)
Under either test, aggravated assault is not an included offense. To begin with, our colleagues in Division Three of this Appellate District have held: “[U]nder either the statutory elements test or the accusatory pleading test, assault with a firearm was not a lesser included offense of attempted murder....” (People v. Parks (2004) 118 Cal.App.4th 1, 6; accord People v. Richmond (1991) 2 Cal.App.4th 610, 617; People v. Gragg (1989) 216 Cal.App.3d 32, 41; In re David S., supra, 148 Cal.App.3d at p. 159.) Other courts have held that assault with any deadly weapon is not a lesser included offense of attempted murder. The courts have reasoned attempted murder can be committed without using a deadly weapon. (People v. Richmond, supra, 2 Cal.App.4th at p. 617; People v. Gragg, supra, 216 Cal.App.3d at p. 41; In re David S., supra, 148 Cal.App.3d at p. 159.) Moreover, the amended information does not describe the attempted murder in such a way that if done in the manner described, an aggravated assault must necessarily be committed. (People v. Wolcott, supra, 34 Cal.4th at p. 101; People v. Quintero (2006) 135 Cal.App.4th 1152, 1169.)
Nevertheless, any error in failing to instruct on assault with a deadly weapon as a lesser included offense was harmless. The factual question posed by the omitted instruction was necessarily resolved unfavorably under the willful, deliberate and premeditated attempted murder instruction which required a finding of specific intent. (Here, the jury found defendants guilty of willful, deliberate, and premeditated attempted murder.) In People v. Flood (1998) 18 Cal.4th 470, 483, our Supreme Court held: “‘Thus, in some circumstances it is possible to determine that although an instruction on a lesser included offense was erroneously omitted, the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions. In such cases the issue should not be deemed to have been removed from the jury’s consideration since it has been resolved in another context, and there can be no prejudice to the defendant since the evidence that would support a finding that only the lesser offense was committed has been rejected by the jury.’” (See People v. Prettyman (1996) 14 Cal.4th 248, 276.) In finding defendants guilty of willful, deliberate and premeditated attempted murder, the jury necessarily found they specifically intended to kill Christopher. Any error was harmless.
2. The trial court could properly instruct the jury with CALCRIM No. 318
Mr. McCaffe argues that the trial court improperly instructed the jury with CALCRIM No. 318 because the instruction shifted the burden of proof, thereby violating his constitutional rights to a jury trial and due process. Mr. McCaffe further argues, “As worded, this instruction created an improper presumption that a witness’s unsworn out-of-court statements are both true and deserving of greater belief than statements made in court under penalty of perjury. Mr. Jefferson and Mr. Duncan join the argument.
CALCRIM No. 318 was given as follows: “You have heard evidence of statements that a witness made before the trial. If you decide that the witness made those statements, you may use those statements in two ways: [¶] One, to evaluate whether the witness’s testimony in court is believable; [¶] and, two, as evidence that the information in those earlier statements is true.”
Prior inconsistent statements are admissible to prove their substance as well as to impeach the declarant pursuant to Evidence Code section 1235. (People v. Guerra (2006) 37 Cal.4th 1067, 1144; overruled on another point in People v. Rundle (2008) 43 Cal.4th 76, 151; People v. Hawthorne (1992) 4 Cal.4th 43, 55, fn.4.) Defendants’ arguments have been rejected by several of our colleagues. In People v. Golde (2008) 163 Cal.App.4th 101, 119-120, our colleagues in the Court of Appeal for the Third Appellate District held that CALCRIM No. 220 cautions the jurors to impartially compare and consider all the evidence presented throughout the entire trial. In Golde, the Court of Appeal continued: “CALCRIM No. 318 tells the jurors how they may use the prior statements ‘[i]f [they] decide that the witness made those statements....’ Thus, the ‘may’ comes into play only after the jurors have found the statements were made. The instruction does not allow the jurors to ignore evidence.” (Accord, People v. Felix (2008) 160 Cal.App.4th 849, 859; People v. Solorzano (2007) 153 Cal.App.4th 1026, 1038-1039.) The trial court could reasonably determine that the evidence required the CALCRIM No. 318 instruction. (See People v. Griffin (1988) 46 Cal.3d 1011, 1026; Use Note to CALCRIM No. 318 (Fall 2007 ed) p. 77.)
CALCRIM No. 220 was given as follows: “The fact that a criminal charge has been filed against the defendants is not evidence that the charge is true. You must not be biased against the defendants just because they have been arrested, charged with a crime or brought to trial. [¶] A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove the defendant guilty beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt unless I specifically tell you otherwise. [¶] Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt, because everything in life is open to some possible or imaginary doubt. [¶] In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendants guilty beyond a reasonable doubt, they are entitled to an acquittal and you must find them not guilty.”
3. Reasonable doubt instruction
Mr. Duncan and Mr. McCaffe argue that the reasonable doubt instruction, CALCRIM No. 220, is constitutionally deficient. (See footnote 3 above.) Mr. Jefferson joins the arguments to the extent they accrue to his benefit. This contention has no merit. (People v. Zavala (2008) 168 Cal.App.4th 772, 780-781; People v. Ramos (2008) 163 Cal.App.4th 1082, 1088-1089; People v. Garelick (2008) 161 Cal.App.4th 1107, 1117-1118; People v. Flores (2007) 153 Cal.App.4th 1088, 1093; People v. Westbrooks (2007) 151 Cal.App.4th 1500, 1509.) Mr. Duncan further argues that CALCRIM No. 220 is deficient for failing to adequately convey the requirement of subjective certitude that is “part and parcel of the proper understanding” of the reasonable doubt concept. This argument has no merit. (People v. Zepeda (2008) 167 Cal.App.4th 25, 28-32; see also People v. Campos (2007) 156 Cal.App.4th 1228, 1238-1239; see also People v. Cook (2006) 39 Cal.4th 566, 601 [abiding conviction language of CALJIC No. 2.90 upheld].) Mr. McCaffe argues that the language requiring the jury “to compare and consider all the evidence” impermissibly “shifts the burden of proof” to the defense. This argument is also meritless. (People v. Zavala, supra, 168 Cal.App.4th at p. 781; People v. Garelick, supra, 161 Cal.App.4th at pp 1117-1119; People v. Stone (2008) 160 Cal.App.4th 323, 332; People v. Hernandez Rios (2007) 151 Cal.App.4th 1154, 1156-1157.)
B. Evidentiary Issues
Admissibility of Mr. Boyd’s entire videotaped police interview
Mr. Duncan argues that the trial court improperly admitted Mr. Boyd’s videotaped interview, which included hearsay evidence. Mr. Duncan further argues the admission of the evidence constituted a violation of his constitutional right to confrontation of witnesses. Mr. Jefferson joins in the argument.
a. Factual and procedural background
Mr. Boyd testified that he did not remember what kind of car he had seen “driving crazy” on June 17, 2006. When testifying, Mr. Boyd denied knowing Mr. McCaffe or having told Detective Marullo that he was the individual that shot at him. In open court Mr. Boyd denied knowing Mr. McCaffe’s mother. Mr. Boyd denied knowing Mr. Jefferson and Mr. Duncan as well. Mr. Boyd also denied stating during the videotaped interview that someone shot at him on June 17, 2006. In the midst of Mr. Boyd’s testimony, the prosecutor played a videotape. The videotape was of Detective Marullo’s interview of Mr. Boyd. Mr. Duncan’s attorney, Alternate Public Defender Matthew Charney, requested that the identification of Mr. Duncan as the third individual in the car during the shooting by another person identified only by a gang moniker was inadmissible hearsay. Mr. Charney further alleged that a statement by someone named “Chris,” also known by a gang moniker, was inadmissible hearsay. Mr. Jefferson’s attorney also objected to the admission of statements made to Mr. Boyd by the person identified as Chris. Cynthia Legardye, counsel for Mr. McCaffe, did not object to the introduction of the videotape as long as a limiting instruction was given. Ms. Legardye later entered the following objection: “[T]he detective and [Mr. Boyd] are having a conversation about an incident involving Mr. McCaffes’s mother and Mr. Boyd.... Mr. Boyd alludes to [Mr. McCaffe’s] mother calling Mr. McCaffe to come handle the situation. He says he was told by one of the [gang members] that [Mr. McCaffe intended to] come up there with a pistol, talking about taking care of who disrespected his mother. Obviously we don’t know who that is. It refers to [fellow gang members]. That person is not going to testify.” The prosecutor, Joseph Porras, argued that the videotape impeached all of Mr. Boyd’s testimony at trial.
In ruling the videotape admissible, the trial court noted: “I have noted the defense’s objections and thought about the objections as well. They will be overruled with this understanding: First off, it appears, just in my quick review of the areas that counsel have pointed out, he [Mr. Boyd] himself distinguishes what he heard from what he actually saw. [¶] I think counsel is correct in that the detective continues to lead him back to: Tell me what you saw as opposed to what you heard. In one part where Attorney Yanes pointed out that, although he said he heard something, he then turns around and says what he saw. [¶] I think there, even though he is making a reference to a hearsay statement, he then distinguishes what he is talking about when he says: This is what I saw. This is that I observed. I know so and so was there because I saw his face. So I think the witness, in some respects makes a distinction. [¶] Also, I think, giving the limiting instruction would be able to satisfy and contain the prejudice that the defendants have received with these statements coming in. I specifically will tell the jury they are not to consider the hearsay statement for the truth of the matter asserted, but they help to explain the state of mind and to provide the atmosphere of the statement and the interview. I will give the limiting instruction before the tape is played. I will give it at the time we instruct the jury as well. [¶] Finally counsel can certainly question him about it and point out that this part of the statement was hearsay. You didn’t see it. Both sides can question him and distinguish what it is he is talking about in terms of what he heard, and what it is he is talking about in terms of what he saw. Counsel will have ample opportunity to do that because he is here. They can use the tape, or however they decide to specify and make it clear exactly what it is, what he is talking about, what he is claiming is his exact observations.”
Before the videotape was played at trial, the trial court gave a limiting instruction: “[L]et me give you a limited instruction as it relates to the contents. It is being offered by the People to impeach Mr. Boyd and to contradict his position that he did not have the interview and also to show any consistent or inconsistent statements that might be in that transcript as relates to his testimony today. [¶] Now, also I am indicating to you, there will be statements in there that are clearly hearsay statements and statements made that don’t pertain to these defendants at all. You are not to consider those hearsay statements as being offered for the truth of the matter asserted, rather to show what his state of mind may have been. It shows the atmosphere of the interview. But those hearsay statements are not to be considered by you for the truth of what they say.”
After the videotape was played at trial, Mr. Boyd was again questioned about the interview with Detective Marullo. Mr. Boyd stated that he did remember the interview. However, Mr. Boyd testified he had been coached before the recording began and told exactly what to say. During a break in Mr. Boyd’s testimony, the trial court noted for the record: “After having viewed the videotape and listened to the transcript, it is the court’s opinion the bases for my initial ruling, I think, were buttressed by what I saw and observed. [¶] It was clear you could tell through the video, as well as the audio, what Mr. Boyd was making reference to in terms of his personal observations and what Mr. Boyd was making reference to in terms of what heard. [¶] It was distinct and very clear. I don’t think there is any chance that the jury will be misled or confused by what he was testifying about. That is the court’s own observation after reviewing the transcript and the tape.” Thereafter, all three defense attorneys cross-examined Mr. Boyd at length about his statements on the videotape as well as what others had told him. The trial court later instructed the jury with CALCRIM No. 303 as follows: “During the trial certain evidence was admitted for a limited purpose. There were certain hearsay statements elicited from Alvin Boyd. Those statements were not admitted and are not to be considered for the truth of the matter asserted. [¶] You may consider that hearsay evidence only for the purpose of establishing that the statements were made.”
b. The trial court could properly admit Mr. Boyd’s videotaped interview
Evidence Code section 770 states: “Unless the interests of justice otherwise require, extrinsic evidence of a statement made by a witness that is inconsistent with any part of his testimony at the hearing shall be excluded unless: [¶] (a) The witness was so examined while testifying as to give him an opportunity to explain or to deny the statement; or [¶] (b) The witness has not been excused from giving further testimony in the action.” Evidence Code section 1235 states, “Evidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing and is offered in compliance with Section 770.” In People v. Hovarter (2008) 44 Cal.4th 983, 1008, our Supreme Court found testimony recounting a witness’s prior statement admissible to demonstrate her subsequent inconsistent testimony at trial. The challenged testimony was provided by a detective. (See People v. Ervin (2000) 22 Cal.4th 48, 84-85 [“‘When a witness’s claim of lack of memory amounts to deliberate evasion, inconsistency is implied. [Citation.] As long as there is a reasonable basis in the record for concluding that the witness’s “I don’t remember” statements are evasive and untruthful, admissions of his or her prior statements is proper. [Citation.]’ [Citation.]”]; People v. Johnson (1992) 3 Cal.4th 1183, 1219-1220.)
These principles were illustrated by our Supreme Court in People v. Ledesma, supra, 39 Cal.4th at p. 710: “Defendant contends the trial court erred in admitting testimony regarding statements made by the witness Santiago Ontiveros during a police interview. When Ontiveros testified at trial, he denied that defendant had told him he was involved in a robbery or that Ontiveros had told anyone else that defendant had admitted being involved in a robbery. He further testified that he did not remember any conversation with a San Jose police officer in March of 1979. When the prosecutor asked him how he could flatly deny telling anyone that defendant had committed a robbery, but also testify that he did not remember what he told the police, he stated, ‘It’s in my nature. I wouldn’t tell anything to begin with.’ [¶] Over a hearsay objection, a police officer testified that in March of 1979 he interviewed Ontiveros, who said that defendant had told him that defendant and Jesse Perez were involved in the robbery at the Hudson gas station. In addition, the prosecutor was permitted to play for the jury a portion of the tape-recorded interview during which Ontiveros told an officer that he did not know anything about the murder, but that defendant had told him that Jesse Perez was on the back of the motorcycle during the robbery. The trial court admitted the tape and the testimony as prior inconsistent statements. (Evid. Code, § 1235.)” Our Supreme Court explained the police officer’s testimony as to Mr. Santiago’s account were admissible as a prior inconsistent statement, “Ontiveros’s insistence that he never told anyone that defendant had admitted being involved in the robbery was plainly inconsistent with his prior statements to the officer.” (Ibid.)
In this case, the trial court could reasonably find as a foundational matter Mr. Boyd’s trial testimony was evasive and untruthful in whole or in part. In addition, the videotape was played while Mr. Boyd was still on the witness stand. All counsel had the opportunity to question Mr. Boyd regarding the inconsistencies in his testimony and the videotape. The trial court could properly admit the videotape pursuant to Evidence Code sections 770 and 1235. Moreover, the trial court gave a limiting instruction at the time the videotape was played for the jury as well prior to deliberations that prohibited the jurors from considering the hearsay evidence for its truth. Our Supreme Court has consistently stated that on appeal: “‘“Jurors are presumed to be intelligent, capable of understanding instructions and applying them to the facts of the case.”’ [Citation.]” (People v. Carey (2007) 41 Cal.4th 109, 130, quoting People v. Lewis (2001) 26 Cal.4th 334, 390; People v. Yeoman (2003) 31 Cal.4th 93, 139; see Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 803.)
Mr. Duncan argues that the hearsay statements of certain gang members identified only by their monikers were inadmissible hearsay. Mr. Duncan acknowledges that inadmissible hearsay may be admitted for a non-hearsay purpose relevant to an issue in dispute. (People v. Davis (2005) 36 Cal.4th 6510, 535-536; People v. Turner (1994) 8 Cal.4th 137, 189-190 [“[A]n out-of-court statement is admissible if offered solely to give context to other admissible hearsay statements.”].)
However, Mr. Duncan argues that the evidence in question added nothing to the issue in dispute. Mr. Duncan further argues that the issue of Mr. Boyd’s state of mind at the time the interview was videotaped was irrelevant. We respectfully disagree. Relevancy based issues are reviewed on appeal for an abuse of discretion. (People v. Cole (2004) 33 Cal.4th 1158, 1198; People v. Kipp (2001) 26 Cal.4th 1100, 1123.)
The videotaped interview demonstrated Mr. Boyd’s earlier willingness to explain what occurred on the day of the shootings. It further explained Detective Marullo’s effort to secure Mr. Boyd’s own perceptions rather than those of others. Mr. Boyd also spoke to Detective Marullo regarding what Christopher said about the shooting. Christopher testified at trial and was subject to cross-examination. The jury had the opportunity to assess Christopher’s credibility. (See People v. Zapien (1993) 4 Cal.4th 929, 953-954.)
Without abusing its discretion, the trial court could reasonably find Mr. Boyd’s statements about what he heard from the two other gang members were likewise relevant to his representations about what occurred. When Mr. Boyd identified the third individual in the back seat of the car based upon what a fellow gang member related, Detective Marullo said: “But this is what I need you to do, Alvin. Because this is between us, you got to separate what you heard and what you saw and you know in your heart. A short time later, Detective Marullo again reminded Mr. Boyd: “Forget everything you heard. Forget everything you heard about what happened that day. Now, it’s just Alvin what Alvin saw that day. [¶] When is the first time you recognized somebody in that car?” Mr. Boyd said Mr. McCaffe was in the passenger seat. Mr. Boyd had seen Mr. McCaffe a thousand times. Mr. McCaffe was the individual shooting at Mr. Boyd. Mr. Boyd claimed not to have seen the driver’s face. But Mr. Boyd stated the driver was African-American and wore a Rolex chain. Mr. Boyd stated he could not see into the rear seat. The jurors could identify those hearsay portions of the videotape which the court instructed them were inadmissible. No abuse of discretion occurred.
Citing to Crawford v. Washington (2004) 541 U.S. 36, 68-69, Mr. Duncan further argues that the admission of the two gang members’ statements to Mr. Boyd violated his Sixth Amendment confrontation rights because they were unavailable for cross-examination. In Crawford, the United States Supreme Court held: “[W]hen the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements. See California v. Green [(1970)] 399 U.S. 149, 162. It is therefore irrelevant that the reliability of some out-of-court statements ‘“cannot be replicated, even if the declarant testifies to the same matters in court.”’ [Citation.] The Clause does not bar admission of a statement so long as the declarant is present at trial to defend or explain it. (The Clause also does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted. See Tennesee v. Street [(1985)] 471 U.S. 409, 414.)” (Crawford v. Washington, supra, 541 U.S. at p. 59.) The Supreme Court further held: “Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers’ design to afford the States flexibility in their development of hearsay law-as does [Ohio v.] Roberts [(1980) 448 U.S. 56], and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether. Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.” (Crawford v. Washington, supra, 541 U.S. at p. 68; see People v. Geier (2007) 41 Cal.4th 555, 598.) This case involves the testimonial evidence of Mr. Boyd, who was available for cross-examination and was cross-examined extensively by all three defense attorneys. The statements of the two gang members identified only by their monikers were nontestimonial statements admitted not for their truth but for the purpose of evaluating Mr. Boyd’s prior inconsistent testimonial statements to Detective Marullo. And, the jurors were twice ordered not to consider the challenged hearsay for the truth of the matter related. The California Supreme Court has consistently stated that on appeal: “‘“Jurors are presumed to be intelligent, capable of understanding instructions and applying them to the facts of the case.”’ [Citation.]” (People v. Carey, supra, 41 Cal.4th at p. 130, quoting People v. Lewis, supra, 26 Cal.4th at p. 390; People v. Yeoman, supra, 31 Cal.4th at p. 139; People v. Bradford (1997) 15 Cal.4th 1229, 1337; People v. Osband (1996) 13 Cal.4th 622, 714; People v. Kemp (1961) 55 Cal.2d 458, 477; see Cassim v. Allstate Ins. Co., supra, 33 Cal.4th at p. 803.) As a result, Crawford is not implicated in this case.
c. Any error in admitting the videotape was harmless
In any event, any error in admitting the challenged evidence was harmless under any standard. Mr. Duncan’s voice was repeatedly recognized by wiretapping officials. On the day of the shootings, Mr. Duncan’s call was intercepted. As noted, in a tape recording of that conversation played at trial, Mr. Duncan said: “We was trying to get that bitch ass nigga AB, though,... cuz got on that little thing.... That’s we was chasin’ cuz, we was chasin’ cuz, on a, he was on a mini bike, we was chasin’ him for like twenty minutes on PJ’s,... chasin’ the nigga and all that... we went through his hood and we didn’t see the nigga so we just milked the other nigga.” Mr. Duncan’s phone was later traced to a motel, where officers found the rust-colored Chevrolet Celebrity automobile. Mr. Duncan and Mr. Jefferson were checked into a motel room there. A search of the Chevrolet revealed a.25 caliber expended casing under the front passenger seat. Two live.25 caliber rounds were found in the motel room. In addition, Ms. Philpot identified Mr. Duncan both at the preliminary hearing and at trial as one of the individuals in the car at the time Mr. Boyd was being chased. Both Mr. Blake and Ms. Philpot described one of the passengers as having a gap between his teeth. Mr. Duncan had a gap between his front teeth. In light of the entire record, it is not reasonably possible that the jury would have returned a more favorable verdict but for the assumed error. (People v. Jablonski (2006) 37 Cal.4th 774, 833; People v. Ervin, supra, 22 Cal.4th at p. 103.)
2. Substantial evidence supports Mr. McCaffe’s convictions
Mr. McCaffe argues there was insufficient evidence to support his murder and attempted murder convictions as either a perpetrator or aider and abettor. Mr. McCaffe argues, “The only evidence implicating him was derived either [sic] from unsworn prior inconsistent statements [by Mr. Boyd] which were recanted at trial.” Mr. Jefferson joins this argument to the extent it accrues to his benefit.
In reviewing a challenge of the sufficiency of the evidence, we apply the following standard of review: “[We] consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt.” (People v. Mincey (1992) 2 Cal.4th 408, 432, fn. omitted; People v. Hayes (1990) 52 Cal.3d 577, 631; People v. Johnson (1980) 26 Cal.3d 557, 576.) Our sole function is to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia (1979)443 U.S. 307, 319; People v. Bolin (1998) 18 Cal.4th 297, 331; People v. Marshall (1997) 15 Cal.4th 1, 34; People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Barnes (1986) 42 Cal.3d 284, 303; Taylor v. Stainer (1994) 31 F.3d 907, 908-909.) The standard of review is the same in cases where the prosecution relies primarily on circumstantial evidence. (People v. Rodriguez (1999) 20 Cal.4th 1, 11; People v. Stanley (1995) 10 Cal.4th 764, 792; People v. Bloom (1989) 48 Cal.3d 1194, 1208; People v. Bean (1988) 46 Cal.3d 919, 932.) The California Supreme Court has held, “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, supra, 18 Cal.4th at p. 331, quoting People v. Redmond (1969) 71 Cal.2d 745, 755.)
As set forth earlier, prior inconsistent statements are admissible to prove their substance as well as to impeach the declarant. (Evid. Code, § 1235; People v. Guerra, supra, 37 Cal.4th at p. 1144.) Moreover, as Mr. McCaffe readily acknowledges, in People v. Cuevas (1995) 12 Cal.4th 252, 257, our Supreme Court held: “T]he sufficiency of an out-of-court identification to support a conviction should be determined under the substantial evidence test of People v. Johnson[, supra, ] 26 Cal.3d [at p.] 578 that is used to determine the sufficiency of other forms of evidence to support a conviction.” (See People v. Roa (2009) 171 Cal.App.4th 1175, 1180.) No other corroboration is required. (People v. Najera (2008) 43 Cal.4th 1132, 1137, fn. 2; People v. Cuevas, supra, 12 Cal.4th at p. 272.) Moreover, as the jurors were instructed here, “The testimony of only one witness can prove any fact.” (CALCRIM No. 301.)
Mr. McCaffe argues that even under the substantial evidence test, Mr. Boyd’s videotaped interview failed to support the judgment. Mr. Boyd admitted the existence of disagreements with Mr. McCaffe. Likewise, Mr. Boyd had disagreements with Mr. McCaffe’s mother prior to the shooting. These facts can legitimately be utilized to argue Mr. Boyd’s identification was unreliable. However, we may not reweigh the evidence. Rather, we must determine if any reasonable fact finder would have found Mr. Boyd’s statements reliable.
Here, the jurors watched the videotaped interview of Mr. Boyd as well as his in-person testimony and recanted story at trial. The jurors were able to observe his demeanor and assess his credibility in each instance. They were instructed about the believability of witnesses. More specifically, CALCRIM No. 226, advised the jurors: “If you decide that a witness deliberately lied about something significant in this case, you should consider not believing anything that witness says. Or, if you think the witness lied about some things, but told the truth about others, you may simply accept the part that you think is true and ignore the rest.” As stated earlier, the California Supreme Court has consistently stated that on appeal: “‘“Jurors are presumed to be intelligent, capable of understanding instructions and applying them to the facts of the case.”’ [Citation.]” (People v. Carey, supra, 41 Cal.4th at p. 130, quoting People v. Lewis, supra, 26 Cal.4th at p. 390; People v. Yeoman, supra, 31 Cal.4th at p. 139.) We presume the jurors followed the instructions here.
Further, other evidence supported Mr. McCaffe’s convictions. Ms. Philpot testified that one of the individuals she saw in the brown car at the time her car collided with it had a mark under an eye. Mr. McCaffe had a teardrop tattoo under his eye. In addition, Ms. Philpot recalled that one of the men in the brown car had braids with beads. When Detective Marullo showed Ms. Philpot a photographic lineup, she indicated Mr. McCaffe’s photo looked familiar. Officer Kouri recalled having seen Mr. McCaffe with long braids. After Ms. Jackson heard gunshots and fell on top of her younger son, she looked into the brown car. Ms. Jackson saw that the passenger wore braids with beads. Neither Mr. Jefferson nor Mr. Duncan had long hair or braids when they were arrested at the motel on the day of the shooting. Mr. McCaffe originally belonged to another rival gang in the area. However, based upon his tattoos and associations, Officer Kouri believed Mr. McCaffe was a member of the same gang as Mr. Jefferson and Mr. Duncan when the shootings occurred. On July 6, 2006, Mr. Hall saw a man running after shots were fired. Mr. Hall saw the man drop the gun. Mr. Hall recognized as someone who previously wrote graffiti representing the gang to which Mr. McCaffe previously belonged. The gun recovered by Mr. Hall was later found to be the one used to shoot Mr. Bundley and Christopher. There was substantial evidence to support Mr. McCaffe’s convictions.
3. Substantial evidence that the crimes were committed for the benefit of a criminal street gang justifies the imposition of gang and firearm enhancements
Mr. Jefferson argues there was insufficient evidence that he committed the murder and attempted murders to promote other criminal activity by gang members. Mr. Jefferson reasons that if there was insufficient evidence of his promotion of gang activity, the firearm enhancement imposed pursuant to sections 186.22, subdivision (b)(1) and 12022.53, subdivision (e)(1)(A) could not be imposed. Mr. Duncan and Mr. McCaffe join his argument.
As set forth previously, in reviewing a challenge of the sufficiency of the evidence: “[We] consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt.” (People v. Mincey, supra, 2 Cal.4th at p. 432, fn. omitted; People v. Carter (2005)36 Cal.4th 1114, 1156.) Our sole function is to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia, supra, 443 U.S. at p. 319; People v. Bolin, supra, 18 Cal.4th at p. 331; People v. Marshall, supra, 15 Cal.4th at p. 34.) The same standard applies to a claim of insufficiency of the evidence to support a gang enhancement. (People v. Leon (2008) 161 Cal.App.4th 149, 161; People v. Vy (2004) 122 Cal.App.4th 1209, 1224; People v. Ortiz (1997) 57 Cal.App.4th 480, 484.)
Section 186.22 provides in relevant part: “(b)(1) [A]ny person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished.... [¶]... [¶] (e) As used in this chapter, ‘pattern of criminal gang activity’ means the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more of the following offenses, provided at least one of these offenses occurred after the effective date of this chapter and the last of those offenses occurred within three years after a prior offense, and the offenses were committed on separate occasions, or by two or more persons: [¶]... [¶] (2) Robbery.... [¶] (3) Unlawful homicide....” “[T]he ‘criminal street gang’ component of a gang enhancement requires proof of three essential elements: (1) that there be an ‘ongoing’ association involving three or more participants, having a ‘common name or common identifying symbol’; (2) that the group as one of its ‘primary activities’ the commission of one or more specified crimes; and (3) the group’s members either separately or as a group ‘have engaged in a pattern of criminal gang activity.’ [Citation.]” (People v. Vy, supra, 122 Cal.App.4th at p. 1222, citing People v. Gardeley (1996)14 Cal.4th 605, 617; see also § 186.22, subd. (f); In re Alexander L. (2007) 149 Cal.App.4th 605, 610-611; People v. Ortiz, supra, 57 Cal.App.4th at p. 483.)
Here, defendants were identified by Officer Kouri as members of the rival gang based on their extensive tattoos, association, self-admission, and his familiarity with the rival gang. Defendants brazenly chased and fired shots at Mr. Boyd, a local gang member, as he drove a minibike. It was only as a result of the intervention of Mr. Boyd’s mother that they were unsuccessful in shooting him. Thereafter, the three men drove in the local gang territory searching for Mr. Boyd. As is evident by the wiretap conversation, the three then “milked” or fatally shot Mr. Bundley instead and shot Christopher. Officer Kouri believed that the shootings occurred for the benefit of the rival gang because of: of the rivalry between the two gangs; the fact that gang members came into rival gang territory; the fact that a rival gang member was shot; and such a shooting would bring respect to the rival gang. As our colleagues in Division Four of this Appellate District held: “[T]he specific intent element [of section 186.22, subdivision (b)(1)] is satisfied if [defendant] had the specific intent to ‘promote, further, or assist’... in... shootings [by fellow gang members in rival gang territory]....” (People v. Romero (2006) 140 Cal.App.4th 15, 20; see also People v. Villalobos (2006) 145 Cal.App.4th 310, 322 [“Commission of a crime in concert with known gang members is substantial evidence which supports the inference that the defendant acted with the specific intent to promote, further or assist gang members in the commission of the crime”]; People v. Morales (2003) 112 Cal.App.4th 1176, 1198.) In People v. Vazquez (2009) 178 Cal.App.4th 347, 353-354, our colleagues in Division Six of this Appellate District held: “[I]f substantial evidence establishes that the defendant is a gang member who intended to commit the charged felony in association with other gang members, the jury may fairly infer that the defendant also intended for his crime to promote, further or assist criminal conduct by those gang members. [Citation.]” (See also People v. Leon, supra, 161 Cal.App.4th at p. 163.) Citing Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099, 1103, upon which Mr. Jefferson relies here, the Vazquez court further held: “We reject the Ninth Circuit’s attempt to write additional requirements into the statute.... There is no statutory requirement that this ‘criminal conduct by gang members’ be distinct from the charged offense, or that the evidence establish specific crimes the defendant intended to assist his fellow gang members in committing.” (People v. Vazquez, supra, 178 Cal.App.4th at p.354; accord, People v. Romero, supra, 140 Cal.App.4th at pp. 19-20.) As set forth above, substantial evidence supported the jurors’ findings the shootings were committed for the benefit of a criminal gang. As a result, both the section 186.22, subdivision (b)(1) and 12022.53, subdivision (e)(1)(A) enhancements were properly imposed. (People v. Hill (2006) 142 Cal.App.4th 770, 774; People v. Williams (2009) 170 Cal.App.4th 587, 634.)
C. Sentencing
1. Gun use enhancements
Following our request for further briefing, the defendants and the Attorney General argue that the trial court should have stayed some of the section 12022.53 enhancements. All three defendants were charged with the allegations that a principal personally used and discharged a handgun in the commission of counts 1, 2, and 3 pursuant to section 12022.53, subdivisions (b) and (c), (d) and (e)(1). Mr. McCaffe was also charged with personally using and discharging a handgun in the commission of counts 1, 2, and 3 pursuant to section 12022.53, subdivisions (b) and (c). The jurors found: the section 12022.53, subdivisions (b), (c), (d) and (e)(1) allegations true as charged in counts 1 and 2 as to all defendants; the section 12022.53, subdivision (b), (c), and (e)(1) allegations true as charged in count 3 as to Mr. Jefferson and Mr. Duncan; and the section 12022.53, subdivision (b) and (c) allegations true as charged in count 3 as to Mr. McCaffe. At sentencing, the trial court imposed a 25-year-to-life section 12022.53, subdivision (d) enhancement as to counts 1 and 2 and a 20-year section 12022.53, subdivision (c) enhancement as to count 3 as to each defendant. The section 12022.53, subdivision (b), (c), and (e)(1) enhancements as to counts 1 and 2, and the section 12022.53, subdivision (b) and (e)(1) enhancements as to count 3 should have been stayed. (People v. Gonzalez (2008) 43 Cal.4th 1118, 1130; People v. McFearson (2008) 168 Cal.App.4th 388, 391.)
2. Mr. McCaffe’s sentence
Following our request for further briefing, Mr. McCaffe argues that his sentence as to count 3 should be modified to seven years to life because the amended information does not specifically charge him with violating section 186.22, subdivision (b)(5), which mandates a 15-year-to-life sentence for felonies subject to a life sentence. The amended information filed December 7, 2007, included a 10-year section 186.22, subdivision (b)(1)(C) allegation as to count 3. The jury found that allegation true. That term was imposed and stayed by the trial court. A gang allegation must be alleged in the operative information. (§§ 1170.1. subd. (e); 1170.11.) The amended information did not include a section 186.22, subdivision (b)(5) allegation. The California Supreme Court has held: “[D]ue process requires that an accused be advised of the specific charges against him so that he may adequately prepare his defense. [Citation.]” (People v. Hernandez (1988) 46 Cal.3d 194, 208; see also People v. Valladoli (1996) 13 Cal.4th 590, 607; People v. Thomas (1987) 43 Cal.3d 818, 823; In re Jonathan T. (2008) 166 Cal.App.4th 474, 483.) Our Supreme Court has determined: “Unlike an enhancement, which provides for an additional term of imprisonment, the 15-year minimum term in section 186.22(b)[(5) formerly subdivision (b)(4)] sets forth an alternate penalty for the underlying felony itself, when the jury has determined that the defendant has satisfied the conditions specified in the statute.” (People v. Jefferson (1999) 21 Cal.4th 86, 101; see People v. Jones (2009) 47 Cal.4th 566, 576 [indeterminate term is an alternative penalty provision.])
Here, the amended information as to Mr. McCaffe specifically referenced section 186.22, subdivision (b)(1)(C) as to all three counts. Section 186.22, subdivision (b)(1) specifically incorporates subdivisions (b)(4) and (5): “Except as provided in paragraphs (4) and (5), any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall,... be punished....” The language advised Mr. McCaffe that Section 186.22, subdivision (b)(5) creates an exception to the sentencing options set forth in subdivision (b)(1). Moreover, it alerted Mr. McCaffe that under certain circumstances set forth in subdivision (b)(5), the punishment will be increased to provide a 15-year minimum parole date. In this case, those circumstances involved the commission of a felony punishable by imprisonment in the state prison for life. A reasonable defendant would understand that, if found guilty, he or she was subject to that alternative sentence.
In addition, section 186.22, subdivision (b)(5) does not contain any additional elements or require proof of facts that were not already alleged in the amended information, there was no danger of Mr. McCaffe being punished for uncharged conduct. As set forth above, all of the elements of Section 186.22, subdivision (b)(5) were pled and found true beyond a reasonable doubt by the trier of fact. (Apprendi v. New Jersey (2000) 530 U.S. 466.) The 15-year minimum parole eligibility was properly imposed as to Mr. McCaffe in count 3. (See People v. Lopez (2005) 34 Cal.4th 1002, 1004; People v. Fiu (2008) 165 Cal.App.4th 360, 390.)
As to the stay order of the count 3 gang enhancement, the trial court could only impose or strike the 10 year enhancement. (§ 186.22, subd. (g).) The count 3 section 186.22, subdivision (b)(1)(C) 10-year enhancement is therefore stricken. (People v. Jordan (1986) 42 Cal.3d 308, 319, fn. 7; People v. Chan (2005) 128 Cal.App.4th 408, 425.) The trial court is to personally insure the abstract of judgment is corrected to fully comport with the modifications we have ordered. (People v. Acosta (2002) 29 Cal.4th 105, 110, fn. 2; People v. Chan, supra, 128 Cal.App.4th at pp. 425-426.)
IV. DISPOSITION
Those portions of the judgment as discussed in part III (C) are modified as noted. The judgments are affirmed in all other respects. Upon remittitur issuance the superior court clerk is to prepare corrected abstracts of judgment which accurately reflect the modifications set forth in part III (C) of this opinion and forward them to the Department of Corrections and Rehabilitation. The judgment is affirmed in all other respects.
I concur: KRIEGLER, J.
MOSK, J., Concurring.
I write only to note that there are cases that apply different standards for determining the application of the gang enhancement. (See, e.g., People v. Ochoa (2009) ___ Cal.App.4th, 2009 WL 3931696; People v. Ramon (2009) 175 Cal.App.4th 843; In re Frank S. (2006) 141 Cal.App.4th 1192; see Briceno v. A. K. Scribner (9th Cir. 2009) 555 F.3d 1069, 1081, fn. 4 [“we doubt that Morales (People v. Morales (2003) 112 Cal.App.4th 1176) is an accurate statement of California law”].) Because the evidence is sufficient in this case, I do not have to set forth my views as to the appropriate criteria for gang enhancements.