Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA279508, Lance A. Ito, Judge.
John Steinberg, under appointment by the Court of Appeal, for Defendant and Appellant Raymond Paul Perez.
Eric R. Larson, under appointment by the Court of Appeal, for Defendant and Appellant Joshua Matthew Perez.
Charlotte E. Costan, under appointment by the Court of Appeal, for Defendant and Appellant Rosario Manuel Leanos.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson and Michael R. Johnsen, Deputy Attorneys General, for Plaintiff and Respondent.
TURNER, P. J.
I. INTRODUCTION
Defendants, Raymond Paul Perez, Joshua Mathew Perez, and Rosario Manuel Leanos, appeal from: their convictions for second degree murder (Pen. Code, § 187, subd. (a)); the finding that Mr. Leanos personally and intentionally discharged a firearm causing death (§§ 12022.53, subds. (d)(1), (e)(1)); and the finding the homicide was committed for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1)(C).) Raymond argues that the trial court improperly: instructed the jury on the natural and probable consequences doctrine; denied the motion to bifurcate the trial of the gang enhancement; admitted testimony by an experienced gang investigator; sentenced him to 25 years to life for vicarious personal use of a firearm and 40 years to life for vicarious liability second-degree murder; and stayed the 10-year criminal street gang enhancement. Raymond further argues: there was insufficient evidence the shooting was a natural and probable consequence of any act he knowingly aided and abetted; the testimony by the experienced gang investigator was insufficient to establish that the crime was committed for the benefit of a criminal street gang; he was denied effective assistance of counsel; and he is entitled to reversal because the trial errors were cumulatively prejudicial. Raymond also joined in the arguments of his co-defendants as they relate to him. Joshua argues there was insufficient evidence that he aided and abetted the murder and his 25 year-to-life sentence was improperly imposed because his liability was merely vicarious. Joshua further argues the trial court improperly stayed the gang enhancement and failed to order the victim restitution payable based upon joint and several liability. Joshua also joins the arguments of his co-defendants which may accrue to his benefit and are consistent with his contentions. Mr. Leanos argues that there was insufficient evidence to support his conviction or the finding that the murder was committed for the benefit of a street gang. Mr. Leanos also argues the trial court improperly: denied Joshua’s bifurcation motion; admitted irrelevant and inflammatory evidence; admitted unnecessary gang testimony; imposed a 10-year gang enhancement; and imposed victim restitution that was not designated joint and several. Mr. Leanos further argues that cumulative error resulted in a miscarriage of justice and he was denied effective assistance of counsel. We affirm in part and reverse in part with directions.
For purposes of clarity and not out of disrespect, Raymond and Joshua Perez will be referred to by their first names.
All further statutory references are to the Penal Code unless otherwise indicated.
II. FACTUAL BACKGROUND
We view the evidence in a light most favorable to the judgment. (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Elliot (2005) 37 Cal.4th 453, 466; People v. Posey (2004) 32 Cal.4th 193, 201; Taylor v. Stainer (9th Cir. 1994) 31 F.3d 907, 908-909.) In February 7, 2005, David Garcia lived in a barbershop which had been converted to a recording studio. Mr. Garcia’s brother, Andres Garcia, and their father, Claudio Garcia, lived in an adjacent house. Mr. Garcia installed security cameras at the studio. Mr. Garcia was a member of a gang that was a rival of the local gang whose territory included the recording studio. Mr. Garcia had been shot approximately one month prior to his death. Thereafter, Mr. Garcia monitored those who sought entry to his studio. Andres had noticed that Mr. Garcia and Mr. Leanos were not as close just prior to the fatal shooting. Mr. Garcia had argued with raised voices with all three defendants prior to his death. Approximately one month prior to the fatal shooting, Mr. Garcia was in a fight with Joshua.
For purposes of clarity and out of no disrespect, we hereafter refer to Andres Garcia as Andres and Claudio Garcia as Claudio.
Tina Roldan and Isaac Hernandez went to Mr. Garcia’s studio at approximately midnight on February 6, 2005. They accompanied Mr. Garcia. An individual identified only as “Danny Boy” or “D-Boy” remained outside the studio. Mr. Leanos was inside the studio at the time. Joshua and Raymond were also present. Mr. Hernandez knew Mr. Leanos, Joshua, and Raymond were members of the local gang based on graffiti, their nicknames, and things they had said. Mr. Garcia and Ms. Roldan entered the studio first. Mr. Hernandez heard Mr. Garcia say, “‘What the “F” are you doing here’ and ‘Who let you guys in?’” Shortly thereafter, Mr. Hernandez saw the three defendants in the studio. Mr. Leanos responded, “‘This is my Varrio.’” Ms. Roldan saw the three defendants as well and identified them at trial. Joshua and Raymond stood behind Mr. Leanos. Ms. Roldan noticed that Mr. Leanos had his hands in the front pocket of his hooded sweater. Ms. Roldan saw something round in Mr. Leanos’s pocket. Later, Ms. Roldan surmised that the “round” object was the cylinder of a hand gun.
Mr. Garcia told Ms. Roldan to go to the other side of the wall. Ms. Roldan asked if she could leave. However, Raymond grabbed Ms. Roldan by the arm and took her to the back room where the bathroom was located.
Joshua then tied a blue bandana on his face. Mr. Garcia said: “‘I spoke to your homies on who could be in my shop. Who I choose to be in here.’” Mr. Leanos responded with laughter and “in a smirk”: “‘Oh yeah. Oh, yeah.’” Mr. Garcia walked toward the front door and said to Mr. Leanos, “‘Are you going to shoot me.’” Mr. Garcia then walked away from Mr. Leanos and toward the door. Thereafter, Mr. Leanos drew a black .357 revolver and shot Mr. Garcia in the back. Mr. Hernandez ducked and ran behind a partition in the room. As he did so, Mr. Hernandez heard four or five more shots.
Mr. Hernandez saw something beneath Joshua’s clothing that appeared to be a shotgun. Mr. Hernandez had seen Joshua carry a double barrel sawed-off shotgun with a pump on approximately 10 prior occasions. On some of those occasions, Joshua carried the shotgun tucked into his belt under his clothing. Mr. Hernandez saw Mr. Leanos leave through the front door. Joshua followed Mr. Leanos out the door. Within 5 to 10 seconds, Raymond went toward the door. Raymond kicked Mr. Garcia’s body twice while leaving the studio. Mr. Hernandez left the studio through the back door with Ms. Roldan. They drove away in a red Blazer truck driven by the individual identified only as “Danny Boy.” On February 7, 2005, Andres found Mr. Garcia dead inside the studio. Mr. Garcia had been shot nine times.
Ms. Roldan was nervous about testifying. Ms. Roldan was afraid for her life and family. Ms. Roldan subsequently identified Mr. Leanos’s photo from a photographic lineup shown to her by the police. Mr. Hernandez had been warned by local gang members, one of whom was a family member of the Perez brothers. Mr. Hernandez was ordered to keep his mouth shut. Mr. Hernandez was afraid of what might happen if he informed the police of the threat. On February 24, 2006, Mr. Hernandez’s bedroom was set on fire. Thereafter, Mr. Hernandez went to the police and said that all three defendants were present at the time of the shooting. Mr. Hernandez identified both Raymond and Joshua from the photographic lineups provided by the police. Mr. Hernandez later encountered Mr. Leanos while they were both in custody in the county jail. Mr. Hernandez was told that nothing would happen to his family and, “Just not to say anything.” Mr. Hernandez was afraid when he gave statements to the police because he feared he or his family would be harmed. According to Mr. Hernandez everyone in the neighborhood knew his family.
On March 29, 2005, Mr. Leanos was arrested in front of 2223 East Second Street. After he was handcuffed, Mr. Leanos yelled out: “Elizabeth”; told the arresting officer, “‘I stay there with my girlfriend”; and gestured toward the building at 2223 East Second Street. Thereafter, a woman came from that area. Police officers later searched an apartment at 2223 East Second Street with the permission of Martha Contreras. In one of the bedrooms within the apartment, the officers located: photographs of Mr. Leanos and Elizabeth Contreras; an identification card, social security card, and a driver’s license in the name of Rosario Leanos; and five .357 caliber bullet casings. An analysis of bullets and bullet fragments recovered from Mr. Garcia’s body and clothing revealed they were fired from either a .38 or .357 caliber or 9 millimeter handgun. A search of an apartment at 1321 South Simmons Avenue uncovered a paper with gang graffiti and the nicknames of Joshua and Raymond. Also, there was a photograph of Raymond exhibiting a hand sign for the local gang. Joshua was arrested on May 24, 2005. Raymond turned himself in on July 25, 2005.
Officer Sal Flores had been assigned to the Hollenbeck gang unit for approximately six years and grew up in that community. Officer Flores had extensive training regarding gangs. In that capacity, he: investigated the local gang; gathered intelligence on gangs; talked to community members and gang members; and tracked gang crimes. Officer Flores knew that gangs establish territories, which they monitored and dominated. The gang unit monitored the local gang’s activities, graffiti, and its members. As part of his duties, Officer Flores knew the gang members. The gang territory defines where the gang members congregate and associate with one another and where their crimes occur. Officer Flores had frequent contact with the local gang members to gather intelligence about their activities. Officer Flores also investigated crimes committed by gang members and was involved in the related arrests. Officer Flores testified: gang boundaries create a state of fear for community members which prevents them from reporting crimes; potential witnesses to crimes are often intimidated by gang members; respect by the gang and residents is very important to gang members; and gang tattoos signify that the individual has “put in work” for the gang by committing crimes. The primary activities of the local gang included establishing fear in the neighborhood and committing crimes such as: robberies; murders; rapes; assaults with deadly weapons; narcotics trafficking, sales, and use; and placing graffiti in the neighborhood. Officer Flores received training from senior officers within the Hollenbeck gang detail. Those officers gave Officer Flores a historical perspective regarding the local gang, which had existed since the 1940’s.
Officer Flores testified that Joshua, Raymond, and Mr. Leanos were members of the local gang based on their own admissions, tattoos, and clothing. Officer Flores was familiar with Mr. Garcia’s gang only through contact with the victim in this case. Officer Flores believed that Mr. Garcia’s studio was being used as a crash pad. Officer Flores believed the local gang members spent the night there, ingested narcotics, and possibly sold controlled substances from the studio. Officer Flores saw local gang graffiti with the monikers of all three defendants within the studio despite the fact that Mr. Garcia did not admit to being from the local gang. Officer Flores was familiar with local gang member Albert Mojarro, who was arrested for and convicted of robbery in case No. BA259533. Mr. Mojarro admitted to his membership in the local gang on more than one occasion. Officer Flores assisted in the investigation of the robbery for which Mr. Mojarro was arrested. Officer Flores was also aware of local gang member Erik Villa, who was arrested for vandalism in case No. BA277156. Mr. Villa admitted his gang membership on more than 10 occasions. Officer Flores participated in Mr. Villa’s arrest.
Officer Flores’s opinion was sought out regarding the following hypothetical scenario: a resident of what is believed to be a crash pad for the local gang returns to his residence in the late evening; when the resident enters his home, he is heard to say: “‘What the F are you doing in here? Who let you guys in here?’”; there are three members of the local gang inside the dwelling facing the resident; another local gang member is asleep on the couch; the individual in front of the resident responds, “‘This is my hood, my neighborhood,’ or ‘my varrio.’”; the resident says, “‘I spoke to some homies about who could and couldn’t be inside my residence.’”; the gang member that responded previously just smirked; the resident then asks, “‘Are you going to shoot me[?]’”; the resident then turns and walks toward the door; and the same gang member that spoke shoots the resident in the back eight times. Officer Flores believed this shooting would have been committed for the benefit of the criminal street gang. The resident’s questioning would have been an insult to the gang members requiring such a response. When posed with the further hypothetical facts that a non-gang member was forced into a bathroom before the shooting and one of the rival gang member’s face was covered with a bandana, Officer Flores believed that the shooting promoted future gang conduct.
III. DISCUSSION
A. Sufficiency of the Evidence
1. Substantial evidence supported Mr. Leanos’s conviction
Mr. Leanos argues, “[T]here is insufficient credible, substantial evidence to sustain the judgment of conviction.” Mr. Leanos argues that Mr. Hernandez and Ms. Roldan gave inconsistent testimony and were not credible witnesses. Mr. Leanos relies upon his testimony that he was not present at the time of the shooting and was a close friend of the victim. This contention has no merit.
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. Carter (2005) 36 Cal.4th 1114, 1156; People v. Hayes (1990) 52 Cal.3d 577, 631; People v. Johnson (1980) 26 Cal.3d 557, 576.) The standard of review is the same in cases where the prosecution relies primarily on circumstantial evidence. (People v. Valdez (2004) 32 Cal.4th 73, 104; 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.) 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 (1998) 18 Cal.4th 297, 331; People v. Marshall (1997) 15 Cal.4th 1, 34; People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) 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.)
In this case, the jury heard the testimony of not only Mr. Hernandez and Ms. Roldan but also Mr. Leanos. The jurors also heard evidence regarding the witnesses’ drug usage and criminal backgrounds. The jury had the opportunity to assess their demeanor and credibility. The California Supreme Court has held: “Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness’s credibility for that of the fact finder. [Citations.” (People v. Jones (1990) 51 Cal.3d 294, 314; People v. Thornton (1974) 11 Cal.3d 738, 754 overruled on another point in People v. Flannel (1979) 25 Cal.3d 668, 684, fn.12; People v. McKee (2008) 160 Cal.App.4th 1517, 1552.) Both Mr. Hernandez and Ms. Roldan identified Mr. Leanos as the individual who shot Mr. Garcia. Moreover, Andres, said there had been problems between Mr. Garcia and the victim, Mr. Leanos, Joshua, and Raymond shortly before the shooting. Mr. Garcia had been shot approximately a month before his death. Mr. Garcia had installed security cameras in order to screen those he would allow entry to his studio. On the morning that he was killed, Mr. Garcia was upset to find all three defendants in his studio. Mr. Garcia told them that he had spoken with their “homies” in the local gang and indicated who was allowed to be in his studio. All three defendants were known to be members of the local gang. Although Mr. Garcia’s studio was within the local gang’s territory, he belonged to a different gang.
The jury was instructed regarding: reasonable doubt; eyewitness testimony; the believability of a witness; discrepancies in a witness’s testimony; differences between a witness’s testimony and that of other witnesses; inconsistent statements of a witness; a witness who is willfully false; the fact that a witness has been convicted of a felony; the weight of a single witness’s testimony; and, the sufficiency of circumstantial evidence. 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 (2007) 41 Cal.4th 109, 130, quoting People v. Lewis (2001) 26 Cal.4th 334, 390; 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. (2004) 33 Cal.4th 780, 803.) Based upon the evidence presented, the jury could reasonably determine that Mr. Leanos killed Mr. Garcia.
2. Substantial evidence supports the findings that Joshua and Raymond aided and abetted in Mr. Garcia’s murder and the jury was properly instructed on the natural and probable consequences doctrine
Both Joshua and Raymond argue that there was insufficient evidence Mr. Garcia’s death was the natural and probable consequence of acts they knowingly aided and abetted, including assault with a deadly weapon. Raymond argues that the trial court improperly instructed the jury on the natural and probable consequences theory of liability pursuant to CALJIC No. 3.02. These two contentions are without merit.
First, as to the sufficiency of the evidence, section 31 provides in pertinent part, “All persons concerned in the commission of a crime, whether it be a felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission . . . are principals in any crime so committed.” The California Supreme Court has discussed the mental state necessary for liability as an aider and abettor: “To prove that a defendant is an accomplice . . . the prosecution must show that the defendant acted ‘with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense.’ [Citation.] When the offense charged is a specific intent crime, the accomplice must ‘share the specific intent of the perpetrator’; this occurs when the accomplice ‘knows the full extent of the perpetrator’s criminal purpose and gives aid or encouragement with the intent or purpose of facilitating the perpetrator’s commission of the crime.’ [Citation.] Thus, we held, an aider and abettor is a person who, ‘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.’ [Citation.]” (People v. Prettyman (1996) 14 Cal.4th 248, 259, original italics, quoting People v. Beeman (1984) 35 Cal.3d 547, 560-561; see also People v. Mendoza (1998) 18 Cal.4th 1114, 1122-1123 [“The jury must find ‘the intent to encourage and bring about conduct that is criminal, not the specific intent that is an element of the target offense . . . .’ [Citations.]”]; People v. Leon (2008) 161 Cal.App.4th 149, 157.)
Our Supreme Court also held: “Once the necessary mental state is established, the aider and abettor is guilty not only of the intended, or target, offense, but also of any other crime the direct perpetrator actually commits that is a natural and probable consequence of the target offense. [Citation.]” (People v. Mendoza, supra, 18 Cal.4th at p. 1123; see also People v. Cleveland (2004) 32 Cal.4th 704, 729; People v. Leon, supra, 161 Cal.App.4th at p. 158.) The Supreme Court has explained the application of the natural and probable consequences rule in the context applicable here: “It is important to bear in mind that an aider and abettor’s liability for criminal conduct is of two kinds. First, an aider and abettor with the necessary mental state is guilty of the intended crime. Second, under the natural and probable consequences doctrine, an aider and abettor is guilty not only of the intended crime, but also ‘for any other offense that was a “natural and probable consequence” of the crime aided and abetted.’ (People v. Prettyman, supra, 14 Cal.4th at p. 260.) Thus, for example, if a person aids and abets only an intended assault, but a murder results, that person may be guilty of that murder, even if unintended, if it is a natural and probable consequence of the intended assault. (Id. at p. 267.)” (People v. McCoy (2001) 25 Cal.4th 1111, 1117.) Moreover, the Court of Appeal has held: “The issue ‘is not whether the aider and abettor actually foresaw the additional crime, but whether, judged objectively, it was reasonably foreseeable.’ [Citation.]” (People v. Vasco (2005) 131 Cal.App.4th 137, 161, original italics, citing People v. Mendoza, supra, 18 Cal.4th at p. 1133.) Our colleagues in the Court of Appeal for the Fourth Appellate District held: “The question whether an offense is a natural and probable consequence of a target offense is to be determined ‘in light of all of the circumstances surrounding the incident.’ (People v. Nguyen (1993) 21 Cal.App.4th 518, 531.)” (People v. Leon, supra, 161 Cal.App.4th at p. 158.
In the present case, all three defendants were self-acknowledged members of the local gang. Each of the three had an ongoing dispute with Mr. Garcia who belonged to another gang. Mr. Garcia had set up a security camera in order to screen out those who sought entrance to his studio. Defendants were present in Mr. Garcia’s studio when he returned home late at night. Mr. Leanos had a handgun. Joshua appeared to have a shotgun under his clothing. Raymond grabbed Ms. Roldan by the arm and took her to the back room where the bathroom was located. Joshua then tied a blue bandanna on his face. Raymond and Joshua stood behind Mr. Leanos during the argument with Mr. Garcia. Mr. Garcia questioned their presence and attempted to have them exit. Mr. Leanos responded, “‘This is my Varrio.’” Mr. Garcia apparently saw Mr. Leanos’s gun and said, “‘Are you going to shoot me.’” Mr. Garcia went toward the front door. Mr. Leanos then shot Mr. Garcia in the back nine times. Defendants fled together. Raymond kicked Mr. Garcia’s body as they left the studio. The trier of fact could reasonably find defendants came to Mr. Garcia’s studio armed for a confrontation. Even if the intended confrontation was assault with a deadly weapon, murder was a natural and probable consequence of that crime. The foregoing constituted substantial evidence Raymond and Joshua were liable for Mr. Garcia’s murder on a natural and probable consequences theory. (People v. Gonzales (2001) 87 Cal.App.4th 1, 10-11 [murder conviction upheld as to nonshooting defendant under natural and probable consequences theory]; People v. Montes (1999) 74 Cal.App.4th 1050, 1056; People v. Montano (1979) 96 Cal.App.3d 221, 227 [defendant’s liability for aiding and abetting an attempted murder does not depend on his awareness that fellow gang members had deadly weapons in their possession].) In People v. Montes, supra, 74 Cal.App.4th at page 1056, our colleagues in the Court of Appeal for the Fourth Appellate District noted: “When rival gangs clash today, verbal taunting can quickly give way to physical violence and gunfire. No one immersed in the gang culture is unaware of these realities, and we see no reason the courts should turn a blind eye to them.” Substantial evidence supports the second degree murder jury verdicts.
Second, as to the instructional errors contention the trial court could reasonably instruct the jurors regarding the natural and probable consequences pursuant to CALJIC No. 3.02. 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. Flannel, supra, 25 Cal.3d at pp. 680-681.) As Raymond acknowledges, the prosecutor relied upon the theory of natural and probable consequences during jury argument. In addition, the trial court was satisfied that there was substantial evidence that Raymond and Joshua Perez intended to encourage or assist in the target offense of assault with a firearm and the jury could reasonably find that the crime ultimately committed by Mr. Leanos was “a natural and probable consequence” of the specifically contemplated offense.
B. Gang Issues
1. Bifurcation of gang enhancement
a. factual and procedural background
Defendants assert the trial court improperly denied Joshua’s motion to bifurcate the trial of the gang enhancement. Defendants argue that the denial of the motion violated their federal constitutional right to due process, or, in the alternative, a miscarriage of justice under the California Constitution. We disagree.
On November 8, 2006, Joshua filed a trial brief regarding the admissibility of gang opinion evidence. Mr. Leanos joined in the “motion.” At a hearing pursuant to Evidence Code section 402 the same date, the trial court indicated it would hear argument on the issue of bifurcating the gang allegation. Thereafter, the trial court read Joshua’s “motion” as well as the preliminary hearing transcript and heard argument from: Robert A. Nadler, Raymond’s counsel; Deputy District Attorney Kathryn A. Solorzano; and Murray Meyer, Joshua’s counsel. Mr. Nadler argued that Mr. Garcia did not object to local gang members “hanging out” in the converted studio. Rather, Mr. Garcia had a personal, unrelated issue with the defendants. In addition, Mr. Garcia indicated he had spoken to some “big homies” from the local gang about who was allowed in his shop. Mr. Nadler argued this indicated that anyone who intervened in the decision of the powerful older members of the gang by violating that agreement would not be acting for the benefit of the gang. Other local gang members continued to “hang out” at Mr. Garcia’s shop. Mr. Nadler argued the evidence concerning gangs was irrelevant and any relevance was outweighed by potential prejudice. Mr. Meyer also argued that the murder was unrelated to the local gang. Mr. Garcia’s shop was used as a local gang crash pad. Mr. Garcia’s problem with defendants was a personal matter in Mr. Meyer’s view.
In denying the bifurcation motion, the trial court noted: “First of all, we have the statement that is attributed to Mr. Leanos that, “‘This is my varrio,’” meaning, “‘I have the right to be here. You’re not going to be able to say anything because this is our territory.’” [¶] Secondly, you have the actions of the codefendants, and specifically Mr. Raymond Perez, who, as the events start to unfold, other potential witnesses otherwise cannot be seen. So clearly they’re acting in concert. And Mr. Raymond Perez has some idea that something else is going on. [¶] This is clearly a - - the People’s position, that this is a demonstration of dominance in a particular gang neighborhood, claiming their territory, does explain the motive. And so, therefore, it is clearly relevant. [¶] And the concession by the defense that this gang issue would still be before the jury, as far as credibility witnesses are concerned, as far as other motives are concerned, still, the gang evidence would come in anyway. So the need to bifurcate is unnecessary.”
b. the trial court could properly deny the bifurcation motion
The California Supreme Court has held: “Although no statute requires bifurcation, we found authority to bifurcate trial issues ‘in section 1044, which vests the trial court with broad discretion to control the conduct of a criminal trial: “It shall be the duty of the judge to control all proceedings during the trial . . . regarding the matters involved.”’ ([People v. Calderon (1994) 9 Cal.4th 69,] 74-75.)” (People v. Hernandez (2004) 33 Cal.4th 1040, 1048.) The Hernandez court distinguished the bifurcation of a prior conviction: “[B]y contrast, the criminal street gang enhancement is attached to the charged offense and is, by definition, inextricably intertwined with that offense. So less need for bifurcation generally exists with the gang enhancement than with a prior conviction allegation. [Citation.]” (Ibid.; see People v. Martin (1994) 23 Cal.App.4th 76, 81.) However, the Hernandez court further held: “The authorization we found in Calderon, supra, 9 Cal.4th 69, for bifurcation of a prior conviction allegation also permits bifurcation of the gang enhancement. . . . [¶] . . . But evidence of gang membership is often relevant to, and admissible regarding, the charged offense. Evidence of the defendant’s gang affiliation—including evidence of the gang’s territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like—can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime. [Citations.] To the extent the evidence supporting the gang enhancement would be admissible at a trial of guilt, any inference of prejudice would be dispelled, and bifurcation would not be necessary. [Citation.]” (People v. Hernandez, supra, 33 Cal.4th at p. 1049; see People v. Balderas (1985) 41 Cal.3d 144, 171-172.) In People v. Albillar (2008) 162 Cal.App.4th 935, 945, our colleagues in Division Six of this appellate district addressed this issue, holding: “Since gang evidence would be admissible to prove [the gang] charge, it follows that the trial court also did not abuse its discretion in denying the motion to bifurcate the gang enhancements. ‘Virtually all of the gang evidence which would be admissible on the gang enhancements would also be admissible on the [other] charge. Thus the jury would hear the evidence during trial of the substantive gang offense.’ (People v. Burnell (2005) 132 Cal.App.4th 938, 948.)”
The same is true in this case. As the trial court noted in denying the bifurcation motion, the gang evidence was admissible in the case in chief to prove motive and explain witness credibility issues. Shortly before his murder, Mr. Garcia had disagreements and physical altercations with defendants. Mr. Garcia referenced speaking to the “big homies” about which local gang members were allowed in his studio. When ordered to leave Mr. Garcia’s studio, Mr. Leanos refused, claiming, “‘This is my varrio.’” The trial court could reasonably deny the bifurcation motion.
2. Opinion testimony
a. admissibility of Officer Flores’s testimony
Raymond argues that the trial court improperly allowed Officer Flores to offer opinions concerning the gangs at issue. More specifically, Raymond argues the testimony violated his federal constitutional due process and jury trial rights or, in the alternative, amounted to a miscarriage of justice under state law. Mr. Leanos joins in Raymond’s argument. Mr. Leanos’ argues Officer Flores’ bias was an additional consideration warranting exclusion of the challenged testimony. Joshua joins the argument to the degree it benefits him.
b. factual and procedural background
As noted previously, prior to the commencement of trial, Joshua filed a brief regarding the admissibility of the gang evidence. During the course of the trial, counsel for Raymond, Mr. Nadler, objected to Officer Flores’ testimony based upon “the apparent spontaneous and unprecedented” nature of the shooting. Mr. Nadler argued, “[T]here is no evidence that this was in any way a gang behavioral phenomenon as specified in Penal Code 186.22.” Counsel for Mr. Leanos and Joshua joined the motion. In denying the motion, the trial court ruled: “The People have filed the 186[.22] gang allegation, street gang allegation. And as such, they are entitled to prove that to the trier of fact. The fact - - they’re not entitled to. They’re obligated to prove that beyond a reasonable doubt. [¶] I’m going to deny the - - overrule the objections to the gang testimony. First of all, it is a subject matter that is very appropriate for the use of expert testimony, as the average citizen does not have a working knowledge of how street gangs operate in Southern California. [¶] As to this case in particular, I am convinced that the People have provided a prima facie case indicating each of the defendants is a member of the [local] gang. The photographs of their tattoos - - each of them has a large tattoo [local gang]. This is something that the ordinary person would not do unless they were in fact a member of the [local] gang. [¶] The People have also presented thus far through the trial evidence that brings one to the conclusion that the presence of the three individuals at Mr. Garcia’s residence was an unwanted presence. The statement by Mr. Leanos that, ‘This is my varrio,’ is a statement of territorial dominance or claim. Mr. Garcia’s response then, ‘Well, I’ve talked to the big homies, and they say that I can have in my residence who I want,’ indicates that there is some conflict within the [local] gang. [¶] As far as the fact that this might be an unpremeditated issue, I think that’s a fact that has to be determined by the jury, whether or not this was a premeditated or unpremeditated killing. I think the prosecution can argue that we have the testimony of Miss Roldan, which indicates that one of the brothers took her to a place where she would not see what was going on. Also, that one of the brothers put a bandana over his face to cover his face. This is before the shooting. [¶] So this - - one could extrapolate from that that the brothers were aware of the violent confrontation that was about to take place and that Mr. Garcia was in fact going to be the victim of a shooting, clearly that they were aware that something was going to occur that they did not want witnesses to be present for. [¶] Also, the - - so I believe that this was a claim of territory – claim of territorial dominance that is subject to expert testimony concerning gangs. So the objections will be overruled.”
c. the trial court could reasonably allow Officer Flores to testify
The California Supreme Court has held: “‘Trial courts exercise discretion in determining both the admissibility of evidence under Evidence Code section 352 [citation] and a witness’s expert status [citation].’ [Citation.]” (People v. Gonzalez (2006) 38 Cal.4th 932, 944.) In People v. Gardeley (1996) 14 Cal.4th 605, 617, the California Supreme Court held that the provisions of Evidence Code section 801 permitted a trial court to admit testimony concerning “[t]he subject matter of the culture and habits” of criminal street gangs. (See also People v. Gonzalez, supra, 38 Cal.4th at p. 944; People v. Champion (1995) 9 Cal.4th 879, 919-922; People v. Killebrew (2002) 103 Cal.App.4th 644, 653; People v. Olguin (1994) 31 Cal.App.4th 1355, 1370; People v. Gamez (1991) 235 Cal.App.3d 957, 965-966 overruled in part in People v. Gardeley, supra, 14 Cal.4th 605, 624.) As the trial court noted here, the information contained a section 186.22 gang allegation. The prosecutor therefore had an obligation to present evidence to support the gang allegation. As the trial court aptly ruled, the challenged testimony was pertinent to: the significance of the Mr. Leanos’s statements that the studio was within his “varrio” or territory; the fact that Mr. Garcia’s order that defendant leave the studio constituted disrespect of rival gang members; and other elements of the gang allegation. (§ 186.22, subd. (b)(1); People v. Gardeley, supra, 14 Cal.4th at p. 619.)
Evidence Code section 801 provides in relevant part: “If a witness is testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is: [¶] (a) Related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact . . .”
In People v. Ward (2005) 36 Cal.4th 186, 210, our Supreme Court found that the opinions introduced in that trial fell within the gang culture and habit evidence approved in Gardeley: “The substance of the experts’ testimony, as given through their responses to hypothetical questions, related to defendant’s motivation for entering rival gang territory and his likely reaction to language or actions he perceived as gang challenges. [Citations.] This testimony was not tantamount to expressing an opinion as to defendant’s guilt.” The same was true in this case. The trial court could reasonably admit Officer Flores’s testimony. (People v. Gonzalez, supra, 38 Cal.4th at pp. 944-947; People v. Ward, supra, 36 Cal.4th at p. 210.) Moreover, any error in admitting the expert testimony was harmless in light of the testimony of Mr. Hernandez and Ms. Roldan and other evidence admitted at trial. (People v. Champion, supra, 9 Cal.4th at p. 923; People v. Watson (1956) 46 Cal.2d 818, 836.)
3. There was sufficient evidence the murder was committed for the gang’s benefit
Raymond and Mr. Leanos argue there was insufficient evidence the murder was committed for the benefit of a criminal street gang. Mr. Leanos further argues that Officer Flores’s testimony regarding the arrests and felony complaints against Mr. Mojarro and Mr. Villa was insufficient. Mr. Leanos argues there was no evidence Mr. Mojarro was convicted of a qualifying felony. The same standard of review we apply to a substantive charge applies to a claim of insufficiency of the evidence to support a gang enhancement. (People v. Leon, supra, 161 Cal.App.4th at p. 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 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, supra, 14 Cal.4th at p. 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.)
Mr. Leanos and Raymond repeat their argument that “there was no evidence of any pre-arranged plan to confront or assault [Mr.] Garcia” despite the fact two of the gang members were armed. Raymond argues that Mr. Leanos acted alone when Mr. Garcia was shot rather than for the benefit of the local gang. (RT 62)~ However, in refusing to leave Mr. Garcia’s studio, Mr. Leanos defiantly said, “‘This is my varrio.’” Officer Flores testified as to the territorial jealousies gangs display towards their neighborhoods. Mr. Garcia said he had spoken with “big homies” about who was allowed into his studio. Mr. Leanos responded with laughter and a smirk: “‘Oh yeah. Oh yeah.’” In reviewing the same hypothetical scenario, Officer Flores believed the resident’s questioning the presence of the gang members would have been an insult requiring a response such as shooting. When posed with additional facts paralleling those here, Officer Flores believed that the shooting promoted future gang conduct. Officer Flores believed the fact that eight rounds were shot made a statement in itself: “‘I’m a gang member. This is my gang. You don’t mess with my gang. You don’t mess with my homies.’” Based upon his experience, Officer Flores believed: “Once this crime was committed, the word spreads fast, not only among [local] gang members, it spreads out to the community, spreads out to rival gangs, and it makes a statement. It says - - absolute statement, saying ‘We are [the local gang]. Don’t mess with us, or you’ll end up like somebody else, like this guy here.’” The jurors could reasonably conclude that the murder was committed by three members of the local gang to proclaim the territory belonged to the gang and to further its activities.
Mr. Leanos’s challenge of the sufficiency of Officer Flores’s testimony regarding the pattern of criminal activity is also without merit. Mr. Leanos argues that Officer Flores’s testimony regarding the arrests of Mr. Mojarro and Mr. Villa was inadequate. Mr. Leanos asserts Officer Flores did not testify that either led to convictions. Mr. Leanos further argues that Officer Flores did not establish that any particular gang member committed a murder, rape, or other violent felony besides robbery.
As noted previously, section 186.22, subdivision (f) defines a “pattern of criminal activity” as the commission of two felonies including robbery and homicide by two or more persons on more than a single occasion. In this case, the murder of Mr. Garcia may serve as one of the predicate offenses set forth in the statute. (People v. Sengpadychith (2001) 26 Cal.4th 316, 323; People v. Gardeley, supra, 14 Cal.4th at pp. 624, 625; People v. Bragg (2008) 161 Cal.App.4th 1385, 1401; People v. Vy, supra, 122 Cal.App.4th at p. 1225, fn. 10; People v. Olguin, supra, 31 Cal.App.4th at p. 1383.) In addition, Mr. Mojarro’s first degree robbery conviction served as a second qualifying predicate offense. Officer Flores participated in the investigation leading up to Mr. Mojarro’s arrest in that case. Exhibit No. 56 was the minute order of the proceedings where Mr. Mojorra pled no contest to the crime of first degree robbery. Mr. Villa’s arrest for vandalism, which was made by Officer Flores, served as firsthand evidence of additional criminal gang activity. Documentary evidence of these arrests was admitted at trial. These gang members had admitted their membership in the local gang to Officer Flores on more than one occasion. Substantial evidence of the required predicate offenses to establish a pattern of criminal gang activity was present. The jurors could reasonably find the evidence sufficient to support the gang enhancement allegation true.
4. Effective representation by counsel
Defendants argue their attorneys’ failure to object to Officer Flores’s representation that Mr. Leanos was a “cop killer” who “slashes cops’ faces” deprived them of their constitutional right to effective assistance of counsel. Officer Flores acknowledged arresting Mr. Leanos. During the arrest process, another officer had punched Mr. Leanos in the face. Officer Flores further acknowledged that the arrest had resulted in an internal affairs investigation. Officer Flores was later asked about the physical encounter with Mr. Leanos that occurred on December 15, 2004. The officers saw Mr. Leanos towering over a young woman. Dressed in gang attire, Mr. Leanos was yelling at the young woman. The officers believed there might be a robbery or domestic violence in progress. The officers approached Mr. Leanos. Mr. Leanos became belligerent and agitated. Mr. Leanos told the officers he was from the local gang. The officers conducted a pat-down search of Mr. Leanos. When asked for identification, Mr. Leanos raised a fist at Officer Flores. The other officer then struck Mr. Leanos. Mr. Leanos was handcuffed and taken into custody. Mr. Leanos angrily stated he: was from the local gang; was a cop killer; and slashes cops’ faces. Officer Flores was asked why the arrest report associated with his December 15, 2004 encounter did not include a reference to the statement that Mr. Leanos claimed to be a “cop killer.” Mr. Matthews, Mr. Leanos’s attorney, inquired, “Don’t you consider that a very serious statement by an individual, ‘I’m a cop killer’?” Officer Flores responded: “Not relatively. Not to the arrest itself. [¶] . . . [¶] It’s serious to an extent. You’ve got to consider what exactly the situation is. I get stories like that all the time from gang members, boasting how bad they are, that there [sic] are cop killers.” Mr. Matthews then inquired, “Not bad enough to put in your report though, correct?” Officer Flores responded: “No. I didn’t think it was relevant.”
Our standard of review in determining whether defendant was denied effective assistance of counsel was specified by the Supreme Court as follows: ‘“In order to demonstrate ineffective assistance, a defendant must first show counsel’s performance was deficient because the representation fell below an objective standard of reasonableness under prevailing professional norms. (Strickland v. Washington (1984) 466 U.S. 668, 687-688.) Second, he must show prejudice flowing from counsel’s performance or lack thereof. Prejudice is shown when there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. (In re Avena (1996) 12 Cal.4th 694, 721.)’ (People v. Williams (1997) 16 Cal.4th 153, 215.) [¶] . . . ‘ . . . “In order to prevail on [an ineffective assistance of counsel] claim on direct appeal, the record must affirmatively disclose the lack of a rational tactical purpose for the challenged act or omission.” (People v. Ray (1996) 13 Cal.4th 313, 349.)’ (People v. Williams, supra, 16 Cal.4th at p. 215.)” (People v. Majors (1998) 18 Cal.4th 385, 403.) Our Supreme Court has also held: “Moreover, ‘[i]f the record on appeal fails to show why counsel acted or failed to act in the instance asserted to be ineffective, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim must be rejected on appeal.’ [Citation.]” (People v. Huggins (2006) 38 Cal.4th 175, 206, quoting People v. Kraft (2000) 23 Cal.4th 978, 1068-1069; People v. Anderson (2001) 25 Cal.4th 543, 569.) In ruling on the effectiveness of a criminal defense attorney, the reviewing court must also consider the record of what the lawyer did do at trial. (In re Ross (1995) 10 Cal.4th 184, 209; People v. Miranda (1987) 44 Cal.3d 57, 121.)
In this case, it is apparent that Mr. Matthews was unaware that Mr. Leanos claimed to be a “cop killer” because it was not in the arrest report. Mr. Matthews inquired about the arrest to demonstrate Officer Flores’s possible prejudice against Mr. Leanos based on the previous encounter. After the reference to “cop killer” was brought out on redirect examination, Mr. Matthews attempted to discredit Officer Flores by noting that the comment had not been included in any police report. Indeed, Officer Flores minimized the importance of Mr. Leanos’s statement, indicating that the gang members often made such boasting remarks. Defense counsel’s failure to further object or request an admonition may have been the result of a tactical decision. Further objections may have brought undue attention to Mr. Leanos’s statements. Counsel need not pursue futile or meritless objections or argument. (People v. Prieto (2003) 30 Cal.4th 226, 261; People v. Ochoa (1998) 19 Cal.4th 353, 432; People v. Lewis (1990) 50 Cal.3d 262, 289.) The record on direct appeal is insufficient to present a finding the three defense lawyers acted in a constitutionally inappropriate fashion. (People v. Gray (2005) 37 Cal.4th 168, 207; People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.) In any event, defendant has failed to sustain his prejudice burden—we have no doubt as to the accuracy of the fact finding that occurred and there is no reasonable probability of a different result. (Lockhart v. Fretwell (1993) 506 U.S. 364, 369-370; People v. Williams (2006) 40 Cal.4th 287, 304.)
C. Expended Casings Evidence
1. Factual and procedural background
Mr. Leanos argues that the trial court improperly admitted evidence concerning expended .357 shell casings found where his wife lived and near where he was arrested. Mr. Matthews objected to the admission of the five shell casings prior to Detective Gutierrez’s testimony regarding their recovery, arguing the evidence was more prejudicial than probative. In overruling the objection, the trial court ruled: “As to the 2nd Street location, I’m going to overrule the objection to the discovery of the five shell casings. I think there’s enough probative value that, A, they are shell casings that are consistent with the firearm that was used in this particular incident; B, that the location can be connected to [] Mr. Leanos. I think clearly that has substantial probative value and is therefore admissible.”
Evidence Code section 352 provides, “The 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.”
2. The trial court could reasonably admit the casing evidence
Mr. Leanos argues, as he did at trial, that the casings should not have been admitted because many people lived in that house. Further, Mr. Leanos argues the casings were not shown to have been fired from the handgun used to shoot Mr. Garcia. Trial courts have broad discretion concerning the admission of evidence. (People v. Anderson, supra, 25 Cal.4th at p. 591; People v. Smithey (1999) 20 Cal.4th 936, 973-974.) We apply an abuse of discretion standard of review to any ruling by the trial court on the admissibility of evidence. (People v. Waidla (2000) 22 Cal.4th 690, 717; People v. Alvarez (1996) 14 Cal.4th 155, 201; People v. Rowland (1992) 4 Cal.4th 238, 264.) As noted previously, officers searched the apartment of Mr. Leanos’s wife, Ms. Contreras. In one of the bedrooms within the apartment, the officers located: photographs depicting Mr. Leanos and his spouse; an identification card, social security card, and a driver’s license in his name; and five .357 caliber bullet casings. An analysis of bullets and bullet fragments recovered from Mr. Garcia’s body and clothing revealed that they could have come from a .357 caliber handgun. The trial court could reasonably find the probative value of the evidence outweighed any prejudice.
3. Harmless error
Moreover, any error in admitting the casings evidence was harmless under any standard. (Chapman v. California (1967) 386 U.S. 18, 22; People v. Watson, supra, 46 Cal.2d at p. 836.) Substantial evidence supported defendant’s convictions. Mr. Hernandez and Ms. Roldan witnessed the confrontation between Mr. Garcia and Mr. Leanos. Ms. Roldan testified that Mr. Leanos appeared to have a gun in the front pocket of his sweatshirt. Mr. Hernandez saw Mr. Leanos draw a .357 revolver and shoot Mr. Garcia in the back. Ms. Roldan identified Mr. Leanos’s picture from a photographic lineup. While in county jail, Mr. Hernandez was warned by Mr. Leanos that nothing would happen to his family and “Just not to say anything.” Any error was harmless.
D. No Cumulative Error Has Been Demonstrated
Defendants argue the cumulative effect of errors committed by the trial court requires the reversal of their convictions. We disagree. There has been no showing of cumulative prejudicial error. (People v. Watson (2008) 43 Cal.4th 652, 705; People v. Boyette (2002) 29 Cal.4th 381, 467-468; People v. Seaton (2001) 26 Cal.4th 598, 675, 691-692 [few errors identified were minor and either individually or cumulatively would not alter the outcome of the trial]; People v. Catlin (2001) 26 Cal.4th 81, 180 [same]; People v. Cudjo (1993) 6 Cal.4th 585, 630 [no cumulative error when the few errors which occurred during the trial were inconsequential].) Whether considered individually or for their cumulative effect, any of the errors alleged did not affect the accuracy of the fact finding process or accrue to defendants’ detriment. (People v. Sanders (1995) 11 Cal.4th 475, 565; People v. Cudjo, supra, 6 Cal.4th at p. 637.) As the California Supreme Court has consistently held, “[A] defendant [is] entitled to a fair trial but not a perfect one.” (People v. Cunningham (2001) 25 Cal.4th 926, 1009; People v. Mincey, supra, 2 Cal.4th at p. 454; People v. Miranda, supra, 44 Cal.3d at p. 123.) In this case, defendants received a fair trial.
E. Sentencing
1. Raymond’s firearm enhancement
Raymond argues that the imposition of a 25-year enhancement pursuant to section 12022.53, subdivision (d) violates federal and state guarantees of due process and equal protection. Raymond further argues: “A person who aids and abets the personal use or discharge of a firearm in a gang case is similarly situated to the aider and abettor in a non-gang case. Whether or not the crime is committed for the benefit of a street gang, a person who aids and abets in the personal discharge of a firearm commits the same acts in each case.” Raymond concludes that there is neither a compelling state interest nor a rational basis for imposing increased punishment in gang cases.
Section 12022.53 states: “(a) This section applies to the following felonies: [¶] (1) Section 187 (murder). [¶] . . . [¶] (d) Notwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a), . . . personally and intentionally discharges a firearm and proximately causes great bodily injury . . . or death, to any person other than an accomplice, shall be punished by an additional and consecutive term of imprisonment in the state prison for 25 years to life. [¶] (e)(1) The enhancement provided in this section shall apply to any person who is a principal in the commission of an offense if both of the following are pled and proved: (A) The person violated subdivision (b) of Section 186.22. . . .”
The California Supreme Court has held: “‘The first prerequisite to a meritorious claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.’ [Citations.]” (People v. Hofsheier (2006) 37 Cal.4th 1185, 1199 original italics, quoting In re Eric J. (1979) 25 Cal.3d 522, 530; see Cooley v. Superior Court (2002) 29 Cal.4th 228, 253.) Raymond’s equal protection argument has been rejected by two divisions of this appellate district. (People v. Hernandez (2005) 134 Cal.App.4th 474, 480-484; People v. Gonzales, supra, 87 Cal.App.4th at p. 12.) In People v. Gonzales, supra, 87 Cal.App.4th at page 12, Division Four of this appellate district held: “‘ . . . Equal protection applies to ensure that persons similarly situated with respect to the legitimate purpose of the law receive like treatment; equal protection does not require identical treatment. [Citation.]’ [Citation.]” (See People v. Green (2000) 79 Cal.App.4th 921, 924; People v. Romo (1975) 14 Cal.3d 189; see also In re Eric J., supra, 25 Cal.3d at p. 531.) However, the Supreme Court has held that only persons similarly situated are protected from disparate treatment. Those convicted of different crimes are not similarly situated for purposes of equal protection. (People v. Hofsheier, supra, 37 Cal.4th at p. 1199; People v. Barrera (1993) 14 Cal.App.4th 1555, 1565.)
In rejecting the equal protection argument of defendants convicted of aiding and abetting where a criminal street gang allegation is pled and proved, the Gonzales court held: “Unlike other aiders and abettors who have encouraged the commission of a target offense resulting in a murder, defendants committed their crime with the purpose of promoting and furthering their street gang in its criminal conduct. The 25-year-to-life enhancement may not be imposed on an aider and abettor under section 12022.53 unless the jury finds the crime comes within section 186.22, subdivision (b).” (People v. Gonzales, supra, 87 Cal.App.4th at p. 13.) Likewise in People v. Hernandez, supra, 134 Cal.App.4th at page 483, our colleagues in Division Seven of this appellate district held: “Clearly the Legislature had a rational basis for imposing a 25-years-to-life enhancement on one who aids and abets a gang-related murder in which the perpetrator uses a gun, regardless of the relationship between the aider and abettor and the perpetrator. As we previously observed, the purpose of this enhancement is to reduce through punishment and deterrence ‘the serious threats posed to the citizens of California by gang members using firearms.’ One way to accomplish this purpose is to punish equally with the perpetrator a person who, acting with knowledge of the perpetrator’s criminal purpose, promotes, encourages or assists the perpetrator to commit the murder.” (Footnote omitted; see People v. Gonzales, supra, 87 Cal.App.4th at p. 19.) No equal protection violation occurred in this case either. The Legislature intended to identify those aiders and abettors who facilitate a crime for the benefit of a criminal street gang as more serious offenders who should be subject to additional punishment.
Raymond further argues: “Section 12022.53, subdivision (e)(1), also violates due process, by authorizing drastically increased sentences for an aider and abettor who is convicted of first degree murder as the natural and probable consequence of a simple assault, without any requirement that the jury find the aider and abettor knew or intended that the homicide be committed by the use or discharge of a firearm. [¶] Section 12022.53, subdivision (e)(1), allows vicarious liability without any finding of fact that the aider and abettor had such knowledge or shared intent.”
Raymond’s due process claim was also rejected in Gonzales: “[The defendant] contends that imposition of the section 12022.53 enhancement violates federal due process because ‘it permits a non-gun-using defendant in a gang case who is convicted of first degree murder as the natural and probable consequence of a simple assault, to be sentenced more severely than a person guilty as an accomplice to first degree murder, and it permits this result without any requirement that the jury find that the defendant knew or intended that the homicide be committed by the use or discharge of a firearm.’ [¶] . . . [¶] As we have discussed, unlike section 664, subdivision (a), this statute is expressly drafted to extend the enhancement for gun use in any enumerated serious felony to gang members who aid and abet that offense in furtherance of the objectives of a criminal street gang. Section 12022.53, subdivision (e) is precisely the clear expression of legislative intent to extend an enhanced penalty to aiders and abettor [that previous courts] found to be missing in section 664, subdivision (a). [¶] [The defendant’s] argument is contrary to aider and abettor jurisprudence in California. As we have seen, the only requirement is that the aider and abettor intend to facilitate the target offense and that the offense ultimately committed is the natural and probable consequence of the target offense.” (People v. Gonzales, supra, 87 Cal.App.4th at pp. 13-15, original emphasis; see also People v. Hernandez, supra, 134 Cal.App.4th at p. 483.) Likewise in this case, defendant’s due process rights were not violated.
2. Raymond’s sentence does not constitute cruel or unusual punishment
Raymond argues that his sentence is so grossly disproportionate as to violate the United States and California Constitutions. (U.S. Const., 8th Amend.; Cal. Const., art I, § 17.) More specifically, Raymond argues that the 40-year-to-life sentence constitutes cruel and unusual punishment. In People v. Alvarado (2001) 87 Cal.App.4th 178, 199, our colleagues in the Court of Appeal for the Sixth Appellate District held: “A punishment is excessive under the Eighth Amendment if it involves the ‘unnecessary and wanton infliction of pain’ or if it is ‘grossly out of proportion to the severity of the crime.’ (Gregg v. Georgia (1976) 428 U.S. 153, 173.) A punishment may violate article I, section 17 of the California Constitution if ‘it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.’ (In re Lynch (1972) 8 Cal.3d 410, 424, fn. omitted.) [¶] In determining whether a particular punishment is cruel and/or unusual, courts examine the nature of the particular offense and offender, the penalty imposed in the same jurisdiction for other offenses, and the punishment imposed in other jurisdictions for the same offense. (Solem v. Helm (1983) 463 U.S. 277, 290-291; In re Lynch, supra, 8 Cal.3d at pp. 425-427.)”
Here, as was the case in People v. Gonzales, supra, 87 Cal.App.4th at page 16, Raymond focuses on the nature of the enhancement for vicarious liability. Raymond argues: he did not fire the shots; the culpability of the person who actually shoots a victim differs from an aider and abettor; Mr. Leanos engaged in a random act when shooting Mr. Garcia; and the imposition of a 40-years-to-life sentence constitutes cruel or unusual punishment. However, as set forth previously, the evidence demonstrated a more serious scenario. Mr. Leanos carried a gun which was visibly noticeable in the front pocket of his sweatshirt. Moreover, Joshua carried a sawed-off shotgun under his clothing and tied a bandana over his face prior to the shooting. Raymond physically moved Ms. Roldan to prevent her from seeing what was to occur while refusing to allow her to leave. Raymond does not set forth any personal factors that diminish his culpability. The 40-year-to-life sentence does not amount to a constitutional violation.
3. Joshua’s 25-year-to-life sentence for weapon and gang enhancements
Joshua: argues his 25-year-to-life sentence enhancement must be reversed because: he was not a principal in the crime of murder as contemplated under section 12022.53, subdivisions (d) and (e)(1); the statute does not include individuals whose guilt is based upon vicarious liability; and the jurors were instructed with a legally incorrect theory which would not justify imposition of the enhancement, namely that he aided and abetted only an assault and was vicariously guilty of the crime of murder based upon the natural and probable consequences doctrine.
Section 30 designates parties to crime as follows: “The parties to crimes are classified as: [¶] 1. Principals; and, [¶] 2. Accessories.” As set forth above, section 31 states, “All persons concerned in the commission of a crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission, or, not being present, have advised and encouraged its commission . . . are principals in any crime so committed.” In People v. Woods (1992) 8 Cal.App.4th 1570, 1588, our colleagues in the Court of Appeal for the Third Appellate District held: “[T]he apparent intent of section 31 is to make the aider and abettor a principal in any crime committed by the perpetrator which is a reasonably foreseeable consequence of the criminal act originally contemplated.” (Original italics; People v. Smith (1997) 57 Cal.App.4th 1470, 1479-1480.) In People v. Prettyman, supra, 14 Cal.4th at page 261, our Supreme Court held: “In People v. Croy [(1985)] 41 Cal.3d 1, we set forth the principles of the ‘natural and probable consequences’ doctrine as applied to aiders and abettors: ‘[An aider and abettor] is guilty not only of the offense he intended to facilitate or encourage, but also of any reasonably foreseeable offense committed by the person he aids and abets . . . .’ [Citations.]” Joshua attempts to distinguish between those found guilty based on vicarious or derivative liability for the natural and probable consequences of a crime from those “principals” who directly commit a crime or who aid and abet in its commission. By placing his conviction in the vicarious liability category, Joshua argues he is not subject to the section 12022.53, subdivision (d) and (e)(1) enhancements because by definition he is not a principal. Joshua acknowledges there is no authority for such a proposition. Section 31 expressly states that an aider and abettor is a principal. (People v. Calhoun (2007) 40 Cal.4th 398, 402; People v. McCoy, supra, 25 Cal.4th at p. 1120.) The trial court properly imposed the 25-year-to-life enhancement pursuant to section 12022.53, subdivision (e)(1) because Joshua aided and abetted Mr. Leanos.
4. The 10-year section 186.22, subdivision (b)(1)(C) gang enhancements
a. Mr. Leanos
Mr. Leanos argues and the Attorney General concedes that the trial court improperly imposed a 10-year section 186.22, subdivision (b)(1)(C) gang enhancement rather than a 15-year minimum parole eligibility date pursuant to section 186.22, subdivision (b)(5). We agree. (People v. Lopez (2005) 34 Cal.4th 1002, 1010-1011; see also People v. Montes (2003) 31 Cal.4th 350, 353.) The 10-year section 186.22, subdivision (b)(1)(C) enhancement is stricken. Mr. Leanos’ minimum parole eligibility date is to be set at 15 years pursuant to section 186.22, subdivision (b)(5).
b. Raymond and Joshua
Raymond and Joshua argue the trial court improperly imposed and then stayed a section 186.22, subdivision (b)(1)(C) gang enhancement as to each of them because the court also imposed a firearm enhancement pursuant to section 12022.53, subdivision (e)(1). We agree. In People v. Salas (2001) 89 Cal.App.4th 1275, 1278-1283, we held: “In a case where section 186.22 has been found to be applicable, in order for section 12022.53 to apply, it is necessary only for a principal, not the accused, in the commission of the underlying felony to personally use the firearm; personal firearm use by the accused is not required under these specific circumstances. However, as a consequence of this expanded liability under section 12022.53, subdivision (e), the Legislature has determined to preclude the imposition of an additional enhancement under section 186.22 in a gang case unless the accused personally used the firearm. In the present case, the jury never found that defendant personally used a firearm. The only findings made by the jury were that a principal in the commission of the offense personally used a firearm. Therefore, section 12022.53, subdivision (e)(2) prevents the imposition of the 15-year minimum term specified in section 186.22, subdivision (b)(5).” (Original italics.) In this case, the 10-year section 186.22, subdivision (b)(1)(C) enhancement should be stricken as to both Raymond and Joshua because the jury did not find either of them personally used a firearm.
c. victim restitution
The trial court imposed a $5,000 restitution order pursuant to section 1202.4, subdivision (f) and orally ordered that all three defendants were jointly and severally liable for that sum. However, the abstracts of judgment do not reflect the joint and several liability. The oral pronouncement of sentence controls over its synthesis in the abstract of judgment. (People v. Mesa (1975) 14 Cal.3d 466, 471; People v. Hartsell (1973) 34 Cal.App.3d 8, 14.) California Rules of Court, rule 8.155(c)(1) provides in pertinent part, “[O]n its own motion, the reviewing court may order the correction . . . of any part of the record.” (See also People v. Mitchell (2001) 26 Cal.4th 181, 186-188; People v. Garcia (2008) 162 Cal.App.4th 18, 24, fn. 1; People v. Watz (2008) 160 Cal.App.4th 1364, 1367, fn. 3.) The abstracts of judgment for all three defendants are to be corrected to reflect the joint and several liability aspect of the section 1202.4, subdivision (f) restitution order. The trial court is to personally insure the abstract of judgment is corrected to fully comport with the modification we have ordered. (People v. Acosta (2002) 29 Cal.4th 105, 110, fn. 2; People v. Chan (2005) 128 Cal.App.4th 408, 425-426.)
IV. DISPOSITION
All 10-year section 186.22, subdivision (b)(1)(C) terms are stricken. A 15-year minimum parole period is imposed as to defendant, Rosario Manuel Leanos, pursuant to section 186.22, subdivision (b)(5). The abstract of judgments are to be modified to indicate defendants are jointly and severally liable for the $5,000 in restitution to the victims. Upon remittitur issuance, the superior court clerk shall forward amended abstracts of judgment to the Department of Corrections and Rehabilitation reflecting the modifications set forth above. The judgment is affirmed in all other respects.
We concur: ARMSTRONG, J., MOSK, J.